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Collaborative Divorce in Difficult Economic Times

March 21, 2012

      By Christopher M. Moore of Moore, Bryan & Schroff LLP

The Available Choices

It’s the hardest decision you’ve ever made: to terminate the marriage. The decision is made, now how do you do it? There are three ways to go: litigation in the court system, Collaborative Divorce or mediation. You can always litigate the case in the court system. To do Collaborative Divorce or mediation will require you and your spouse to agree on the method. There are benefits and pitfalls of each.

Conventional Litigation: The Good, the Bad and the Ugly

 

The Good:

 If you go to court, eventually you may get to tell your story to a judge. You can get the court to take charge of your case and make orders. In some cases, say where there is abuse or hidden assets, resort to the court may be the only way out. Most cases are still settled in this fashion.

The Bad:

A visit to the courthouse often ends in frustration. While you may get to tell your story to the judge, your spouse will be able to do so as well and you may find it difficult, even with the help of a lawyer, to get your story across to the court. Your spouse’s story may be wildly at odds with yours and, to your chagrin, the judge may believe your spouse, not you.

The Ugly:

In today’s economy the courts, like everyone else, are short of money. Courts have reduced their staffs in recent years and more cuts are coming. There are simply not enough judges to hear all the cases and delay is the rule in large counties like Los Angeles. Routine hearings are often delayed for months, and it can take a year or more to get to trial even in a relatively simple case. When your case comes up for hearing or trial, the judge may have a dozen or more cases on calendar that day and the time allotted to your case may not be enough to get all of the facts before the court that you had hoped you could. There may be so many cases that yours can’t be heard on schedule and you have to come back another time, perhaps weeks or months away. All this takes money.

The cost of trying a divorce case the old-fashioned way is legendary. Your lawyer will likely cost from $250 an hour to $500 an hour or more. In all but the simplest cases, each side may have to hire a forensic accountant who charges fees similar to those of the lawyers. If there is a contested child custody issue, the parties may need the services of a custody evaluator who will recommend to the court what the custody order should be. The evaluation process takes months and is expensive. Each side takes the most extreme stand it can, hoping that the court will rule closer to its position than the other side’s. Even in a simple case the fees can run into tens of thousands of dollars. In a more complex case there is truly no limit to the cost. The cost of conventional litigation often puts it out of reach of the middle class or even affluent family, particularly in today’s economic climate where the family home equity may be negative, one spouse or both may have lost their jobs, and the family business may be bankrupt or nearly so.

Mediation

 The Benefits:

Mediation is a popular alternative to litigation. It’s less expensive than using the court system and avoids court delay and congestion. The mediation process is confidential and nothing said there may be used later against you in court. It’s informal and can resolve cases quickly. If there are factual disputes, the mediator may recommend a neutral expert like an accountant or child specialist to help resolve questions like valuation of a business or a parenting plan for the children. Using neutral experts avoids the double fees and polarization that can occur when each side retains its expert, as happens in litigation.

The Pitfalls:

Mediation can have a downside. Anyone can call himself or herself a mediator. There are no licensing requirements for mediators. Ideally, the divorce mediator is an experienced divorce lawyer who is trained in mediation.

The potential for abuse is often cited as the most serious potential problem in mediation. A domineering spouse with a history of physical, verbal or mental abuse may propose mediation as a way to get what he or she wants in the divorce settlement. If your spouse has dominated you throughout the marriage and you’ve had many arguments about money or other things and have never won one, or you feel afraid to argue with or challenge your spouse, mediation is probably not right for you. In mediation the parties meet with the mediator alone, outside the presence of their lawyers, and if the playing field is not level because of the parties’ relationship, mediation is not likely to produce a fair or reasonable outcome.

Collaborative Divorce

Collaborative Divorce often offers the best path to a divorce settlement that is cheaper, faster and more amicable than going to court, while avoiding the potential for abuse sometimes found in mediation.

How Collaborative Divorce Works

In Collaborative Divorce, each party has a lawyer. The parties sign a stipulation that they won’t resort to court, won’t do formal discovery like depositions and written interrogatories, will voluntarily exchange information and will settle the case by agreement. If either side decides to end the collaborative case and go to court, both lawyers are out and each party must obtain a new lawyer to litigate the case. Like mediation, everything said in a collaborative case is confidential and may not be used in court in any later litigation. The case is handled through a series of meetings with the lawyers and parties. The number of meetings it takes to reach settlement will depend on the complexity of the issues and the parties’ emotions. The goal of Collaborative Divorce is to mold the parties, lawyers and coaches into a team that tackles problems in a cooperative and positive way. The professionals are trained to find imaginative solutions that avoid deadlock and result in a win-win outcome wherever possible.

Coaching

In most divorce cases, particularly at the outset, emotions run high. One party or both may be experiencing feelings like anger, denial, anxiety, depression and other negative emotions. Parties experiencing these dark feelings find it hard to reach agreement on the real issues like the financial settlement and working out a parenting plan in the best interests of the kids. To work past these negative emotions, the lawyers will urge each party to have a coach, a mental health professional who is a counselor or therapist in his or her practice. The coaches don’t act as counselors or therapists for their clients in a collaborative case though. Rather the coaches’ role is to create a team of the parties, the coaches and the lawyers. Each party and coach will meet separately and then all four will meet together. It may only take one or two meetings for the coaches to get the parties past the negative emotions so they are ready to move on with the real issues.

Teamwork is the key to a successful collaborative case. Lawyers and mental health professionals who practice Collaborative Divorce have been trained in the techniques that help mold both sides into a team with one goal.

Where there are factual or legal issues that require an outside expert, the lawyers will agree on a neutral expert such as an accountant or child specialist who will propose an appropriate solution.

Collaborative Divorce is not without its negatives. The cost of the professional team, with lawyers, coaches and possible neutral experts may seem daunting. If collaboration fails and the case must go to litigation, there is a cost to the parties in hiring new lawyers.

Experience teaches, though, that Collaborative Divorce almost always produces an outcome faster, cheaper and more amicably than conventional litigation. The risk of changing lawyers deters the parties from dropping out of collaboration and resorting to litigation. That each party has a lawyer avoids the potential for abuse and levels the playing field between the parties. Mental health professionals acting as coaches reduce the parties’ anger so they can get to the negotiating table. Neutral financial experts avoid the cost and polarization that occurs when each side has to hire its own expert as in a conventional case.

A strong case can be made that in these difficult economic times Collaborative Divorce offers the best route to a divorce that is fast, friendly and fair.


How to Find a Collaborative Professional

 

To find a collaborative lawyer in the South Bay area, visit www.abetterdivorce.com. For a collaborative lawyer in the Greater Los Angeles area,visit the Los Angeles County Family Law Association at www.lacfla.org.

Christopher Moore is a member of A Better Divorce, a Collaborative Divorce practice group in the South Bay area of Los Angeles County. He is certified as a family law specialist by the State Bar Board of Legal Specialization and practices Collaborative Divorce, mediation and litigation in Torrance, California. Chris received his AB from Stanford and his JD from Harvard Law School.  He speaks and publishes frequently on law-related subjects.

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