A softer, more congenial approach
Preparing for a major event often involves a team of professionals. A wedding includes photographers, caterers and florists. People often seek advice from financial planners and tax advisors when considering retirement options. We engage these professionals to be part of the process without a second thought. Divorce is another story.
Traditionally, each spouse hires his or her own attorney. Attorneys not only serve as legal counsel, but often as a personal counselor, financial specialist and real estate advisor. The traditional divorce process can quickly evolve into a “me-versus-you” mentality where no one wins. If the couple ends up in court, they hand over control of the outcome to a third party. How confident would you be in a judge’s ability to know what’s best for your children?
A VILLAGE APPROACH
Fortunately, there are multiple avenues to divorce. One option, collaborative law, has been picking up momentum in Indiana over the last several years. With collaborative divorce, both spouses agree to find a customized solution that addresses the present and future interests of all family members. They also pledge not to litigate. The emphasis is on planning rather than finger-pointing.
You’ve heard the expression, “It takes a village?” With collaborative divorce, both parties have their own attorney, but they share a mental health professional, child specialist and financial specialist. To ensure objectivity, all team members, except the attorneys, are neutral parties, with no prior relationship with the family. The goal of the interdisciplinary team is to create a positive outcome that’s mutually acceptable to everyone involved.
When choosing an attorney, be aware that collaborative law is a specialty practice. Not all attorneys practice collaborative law or are trained in this area. To pursue a collaborative divorce, both attorneys should be trained in the collaborative process. You can find a list of Indiana collaborative law practitioners on the Central Indiana Association of Collaborative Professionals website.
COLLABORATIVE LAW VS. MEDIATION
Mediation and collaborative divorce are both non-adversarial approaches that focus on reaching a solution that considers the interests of all parties involved. The difference lies in how they reach the outcome.
Mediation is a tool that is typically used after divorce proceedings are well underway, while the collaborative process is used from the onset.
In mediation, a neutral third party assists the spouses in negotiations, but does not provide legal advice. In fact, mediation does not actually require the spouses to be represented by an attorney. Often the parties are in different rooms, and the mediator shuttles back and forth. Meetings may take several hours and can become mentally exhausting. Resolution is heavily reliant on the skills of the mediator. Compromises may be impacted by the fear of a trial, and it is not uncommon for one or both parties to have “buyer’s remorse.”
The collaborative process takes place over a series of meetings and is truly a group effort to find solutions that satisfy everyone’s interests and needs. The open flow of communication among the team members leads to more creative, individualized resolutions that will help everyone move forward post-divorce. The fact that both spouses have a voice in the terms of the agreement, as well as the insight of multiple professionals, often reduces the need for couples to make amendments to the terms in the future.
ADVANTAGES OF COLLABORATIVE DIVORCE
Emotionally, the collaborative process can often be a kinder, gentler process than both mediation and litigation. Ending a marriage is emotional enough. Avoiding the fear, surprise and likely increased conflict associated with a court case may make the transition more peaceful for everyone.
From a financial perspective, collaborative divorces can also be more cost-effective. Meetings tend to be more productive and efficient. Whereas attorneys would likely have to conduct research in areas outside their expertise, financial specialists can provide immediate guidance, which allows attorneys to focus exclusively on family law.
The process can also move along more quickly than a traditional divorce. That’s because the involved parties — not the caseload of the court system — determine the timeline, although some statutes may impact the timeline.
Even if you choose to pursue mediation, your attorney still may need to complete filings with the court system that will impact your ability to make progress in a timely fashion. Streamlining the process should also result in lower fees.
WHAT IF COLLABORATIVE DIVORCE DOESN’T WORK?
Nothing is fail-safe. What happens if, despite all good intentions, the spouses can’t come to a consensus and one spouse decides to go to court? At that point, all professionals involved, including attorneys, must withdraw from the case. The spouses will need to start over from scratch with new attorneys. And that means more time and additional expenses.
If you find yourself considering a divorce, but can’t envision what a post-divorce life might look like, you should start by speaking with a professional. Depending on where your uncertainty lies, that professional could be an attorney, financial advisor, or counselor. Regardless of whether the collaborative divorce process is the option you pursue, there is still tremendous value in engaging with a financial advisor and child specialist to partner with your attorney. Their expertise combined with your attorney’s guidance could make the difference in a settlement you can live with.
The cost of the divorce and the division of the marital estate can be one of the most devastating financial events in a couple’s life together. As with all major life events, it’s important to know your options before taking action. If you are considering a divorce, it’s worth learning more about collaborative divorce. The process isn’t right for everyone, however, so it’s important to discuss all options with your attorney.
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