Collaborative vs Litigation Divorce

Once you’ve made the decision to get divorced (or if you’ve – ahem – had that decision made for you) – the most important “next step” decision to make is choosing the METHOD of divorce you want to use. (What?!? There’s more than one method? Of course! What, you thought this was going to be easy?)

Depending on your situation, you could potentially save significant amounts of money and limit the financial impact of your divorce.

Read on for a comparison of the two main approaches people take when getting divorced – traditional litigation, and a newer method called collaborative divorce. There are pros and cons for each, and depending on your scenario you may want to lean towards one vs. the other…

On the one hand, you’ve got traditional litigation. This is what most people have in mind when they think about divorce – two attorneys, each sitting next to their clients, battling it out across a table in a conference room – or facing a judge in a courtroom.

 

Pros of using Litigation:

Predictable – while the actual judge’s decision isn’t something you can predict – the process to get there (or to settle early and avoid going in front of a judge at all) is pretty cut and dry. You know what the variables are, your attorney can give you a ballpark estimate for her time required to move through each of the steps, and in general the whole process is time-tested.  Not a whole lot of out-of-the-box thinking, and for some divorcing couples, taking a proven path may be preferable than wandering down uncharted trails.

Clear rules of engagement – during divorce, emotions and stress levels can run high. But while the two “stars of the show” (the divorcing spouses) may be losing their cool, the supporting staff are indifferent – they’re staying cool, following the rules and sticking to the relevant facts. When the other side is throwing everything plus the kitchen sink at you in the heat of battle, having a clearly defined set of rules lets the attorneys simply filter out all irrelevant noise. Just the facts, ma’am.

Cons of using Litigation:

Time consuming – the traditional legal process of divorce moves in increments of months or even years, not days or weeks. Every filing, every motion, every request for discovery – those are large chunks of time spent by you and your adversary, along with expensive hourly attorneys running the clock. And each of these “meetings” moves things forward one step at a time – at best.

Expensive – No getting around it – the process is time consuming. And the attorneys work by the hour. Even though the road ahead is (mostly) known in advance, it’s still a toll road.

Hostile – Let’s face it: divorce means each party is suing the other. The very nature of this scenario means that by default, you disagree about one or more key areas. Areas that you are fighting to “win”, so that the other must “lose”.

No control of the outcome – while the process itself is well defined, at the end of that process lies the chance that your divorce details will be decided by someone else – a judge. A judge who sees hundreds of cases a year, and at BEST will skim through your case with all the care and concern of someone making a decision from a lunch menu at a deli. Depending on the skill of your attorney, and the attention level of the judge – you may have life-altering decisions made for you that you will be stuck with.

Who litigation is good for:

If you and your spouse are already in a high conflict relationship – where your default method of handling disagreements is engaging in anger filled conversations, and/or one party is a “bully” to the other – you don’t stand much chance of getting an outcome that protects your rights without having two attorneys playing on a field with specific rules. Diplomacy has failed, and it’s now time to go to war. With trained combatants at your sides. Ugh.

 

 

Then on the other hand, there’s a less “combative” method called collaborative divorce. This is a relatively new method of law in the US that started in the late 1980’s – and has been adopted by a growing number of divorce attorneys who seek to practice a less combative form of law. In short, they’re tired of the battlefield and want to pursue a less toxic approach. Instead of both sides lawyering up and retreating to their respective corners of the boxing ring, both sides agree to engage in a series of shared meetings to hash things out together, consider options, and engage with shared “consultants” for things like child custody discussions and financial divisions. The goal is to move through these meetings (the amount of meetings varies) and arrive at a solution that works for everyone. And once that solution is in writing, the attorneys can finalize it in legal documents for signature by a judge. Everyone works together to find a shared solution.

 

 

Collaborative Pros:

You own the outcome. By having both sides working together at all times, vs. the endless back-and-forth volleying of proposals and counter-proposals that dominate more traditional litigation divorces, YOU AND YOUR SPOUSE have the ability to settle things in realtime. Assuming you can work through the list of open items, and close each one down, by the time you’re done you’ve got all the ingredients the attorneys need to formalize everything into a complete and final set of documents that only need a judge’s signature to make final. No rolling the dice with a judge.

 Less hostile. Because you’re both entering an agreement to work together to find resolution (and signing a contract to NOT break that agreement) – things are less likely to devolve into “battle mode”. You’re not slinging legal arguments back and forth via your attorneys to someone out of sight. You’re all in the same room, with coaches and attorneys who have pledged to “play nice”.

Quicker timeline for resolution. With traditional litigation, you’re at the mercy of the court’s schedule. And your attorney’s schedules within those court schedules. With collaborative divorce, all parties are motivated to find time together ASAP to sit down. It’s up to you and your spouse to determine how much time needs to be spent negotiating.

Collaborative Cons:

Meetings. Lots and lots of meetings. One day you’re meeting with a parenting coach to help draft up your parenting plan. The next you’re meeting with the financial intermediary to discuss asset division.

Expensive – All those meetings, and all those shared professionals, all in one room? That’s a VERY expensive meter that’s running. In theory, you save money overall because you hash things out quickly in the same room together. But it’s still a very expensive room to be sitting in.

Ambiguity. Compared to traditional litigation, collaborative divorce “tosses out the rulebook” more. You’re able to come up with more creative solutions together vs. what a judge would hand down in a court decision. So long as you’re not proposing anything illegal, and both sides agree? You can come up with all kinds of ideas. But this has a downside – if either party decides to get greedy, or obstinate, or is unwilling to consider those creative solutions? Then you’re just wasting time spinning around brainstorming, running up fees, exhausting goodwill, etc.

Who collaborative is good for:

Collaborative Divorce promises a quicker, less expensive, and less stressful way to go. If you and your soon-to-be ex are VERY good at conflict resolution, and can empathize with each other’s needs while holding similar priorities and values about things like child custody, asset division, and spousal maintenance / alimony? You should strongly consider this approach. If you can look at this image below and honestly envision you and your spouse behaving like that? It’s the far less painful way to go.

 

 

Sensei’s take:

You might be reading this thinking collaborative sounds too good to be true. In my case, it was.

When my own divorce began, my wife suggested the idea of collaborative divorce. I had never heard of it before, but she had researched it and said it sounded like the way to go. I agreed to give it a try, because hey – it sure sounded nicer than litigation!

Huge mistake. My wife was collaborative only as long as everything being discussed went her way. There was no “sitting down to discuss options” – there was only one side making demands, and the other trying (unsuccessfully) to re-center things back to collaboratively suggesting alternatives. My wife lost her cool several times during meetings, standing up, storming out of the room, etc. and at one point I thought she was actually going to flip the table over. Both attorneys became increasingly frustrated, and long story short – after one final maneuver from my wife left even HER attorney shaking her head and saying we were no longer following the collaborative process we agreed to – we “dropped out” of collaboration, retained new (litigation specialist) attorneys – and finished our divorce via more traditional means – lobbing documents back and forth via email, mediating from separate rooms until an agreement was finally reached.

In hindsight, I should’ve realized that my wife’s anger, volatility and penchant for high conflict made us poor candidates for a collaborative divorce. We did NOT look anything like that photo above with everyone smiling, and shaking hands across the table.

And as far as collaborative being a less expensive way to go? Well, not really… Think of divorce costs as falling into one of two main buckets:

  • money paid to the opposing side (spousal support/alimony, asset/property division, and child support)
  • money paid to professionals (i.e. attorney fees)

In my case – when all was said and done, I ended up paying out about the same amount of $ to the opposing side in spousal maintenance, child support, and asset/property division as I would have using either litigation, or collaborative. i.e. it didn’t matter which way I went, I would’ve paid about the same. But since we made VERY inefficient use of the collaborative process – by wasting time blowing up in meetings, running the meter for multiple expensive professionals, multiple times – I ended up paying MUCH more in attorney’s fees than if I had just taken the direct approach of litigation.

So – IF you and your spouse honestly believe you can work things out in civil and respectful fashion? I’d give collaborative divorce a serious look. You could save time and money.

If not – then collaborative is not for you. Accept it, recognize that’s probably WHY you two are divorcing, then move on. Find a traditional attorney. Litigate. Then (hopefully) avoid court and mediate.

 

 

For those reading this who have gone through (or are still in the middle of) their own divorces, what method did you use? What was your experience? Do you have a positive example of collaborative divorce to share?

 

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