There are several ways to obtain a divorce in California. The spectrum of options includes the do-it-yourself divorce, mediation, collaboration or traditional litigation. However, there is no one-size-fits-all option. You must decide which method is best for you and your family under your very specific facts/circumstances. With that in mind, here are some pros and cons to consider before choosing one of the most popular and effective options, collaborative divorce.
- Litigation is Avoided – Collaborative divorce offers an alternative to litigation for those parties who are willing to work on reaching a settlement without taking the matter to court. In the collaborative process, the parties and their attorneys sign an agreement not to go to court. This allows the parties to work together with their collaborative team to reach a settlement on their terms – one that let each party move forward while taking into consideration the individual needs of their family. By contrast, litigation subjects the parties to the rulings by the court, as well as to the court’s timetable for setting hearings which can prolong the resolution of the matter.
- Parties Are in Control of the Collaborative Process – In collaborative divorce, the parties control their own fate rather than having to accept what the court decides. The parties resolve the issues themselves, with the help of each side’s collaboratively trained attorney and additional assistance provided by other team members, such as coaches and financial neutrals. This means the parties design their own unique settlement that is best suited for their family needs and goals.
- Proceedings Are Private – Everything filed in a litigation case becomes part of the court’s record, which is available to the public. In a litigated divorce proceeding, it is common for each party to prepare declarations explaining to the court why he or she should and the other party should not obtain the relief they requested from the court. Often, these declarations contain allegations and mudslinging among the parties that they do not necessarily want the public to access. The declarations could even be obtained by the parties’ children at some point, allowing them to read all of the horrible things their parents said about each other. In addition, financial information can also be contained in the court’s file, allowing others to see private financial data about the parties.
In collaborative divorce, there are no written declarations which contain and perpetuate mudslinging among the parties. The statements and discussions made by the parties during settlement discussions are not filed with the court; they remain private among the parties and their team. The majority of financial documentation can be kept confidential between the parties as well (except those documents that must be filed with the court). In high profile cases, such privacy means the media is less likely to be alerted about disputes regarding child custody, support and/or other issues because no motions are filed.
- Each Party Has Their Own Attorney – When the parties are not on equal footing (i.e. one party is more financially savvy or aware than the other), they tend to feel better having their own attorney to help protect their interests. Other forms of marital dissolution, like mediation, do not automatically provide for each party to have personal representation. Because they have legal assistance, each party in collaborative divorce will likely feel more secure during the process and focus more on settlement.
- It Is Easier to Keep High Emotion Out of the Process – The goal of collaborative divorce is to keep high emotion out of the process, particularly when other professionals help keep emotions under control during settlement discussions. Often, coaches (such as mental health professionals) are called in to help teach the parties how to communicate their differences in a calmer and more productive manner that lets them speak with each other more like business partners than as former spouses. This keeps the fighting down and allows the entire team to work toward settlement.
- If the Process Fails, Both Attorneys are Fired – If either one of the parties and/or their attorney chooses to terminate the collaborative process, attorneys for both sides and the rest of the collaborative team can no longer proceed in assisting the parties with their case. The parties must each obtain new attorneys and start over. This could add additional time and cost, because the only other option in obtaining dissolution is through litigation. Thus, if one party chooses to disengage, mislead and/or not participate in the collaborative process, unnecessarily prolonging it, the process fails for both parties.
- The Court Cannot Grant Relief – If no settlement on an issue can be reached, there is no ability in the collaborative process to seek relief from the Judicial Officer assigned to the case unless the parties terminate the collaborative process and commence litigation. There is no ability to “force” a party to act in good faith, by disclosing documents or coming to a settlement on the issues.
- The Process Is Not Suited for High-Conflict Couples – Collaborative divorce is not well suited for parties that have a history of domestic violence, as it is unlikely that the abusive spouse will be able to sit calmly and discuss settlement terms without resorting to violence and/or manipulation. In addition, collaborative divorce is not well suited for a party who fears that the other party may be hiding assets/debts. Collaborative divorce requires some amount of trust among the parties to be successful.
- Collaborative Divorce Is Not Necessarily the Least Expensive Method – Collaborative divorce can be costly, especially if the process fails and the parties are forced to start over and engage new attorneys to commence litigation. Other methods for divorce – like a do-it-yourself proceeding or mediation – would more likely be cheaper than collaborative divorce, but as processes they are not as supportive of the parties or their ability to reach a resolution.