Divorce is never an easy process but how couples choose to resolve their disputes can make a substantial difference in the speed, cost and emotional upheaval involved with ending a marriage. Litigation is the traditional means for settling divorce matters. However, there are other ones such as mediation and collaborative divorce. Litigation and collaborative practice vary the most. In order to make the best choice for your divorce, consider these differences between the 2 processes:
- Control. Collaborative divorce is a voluntary process, whereby the parties agree to work together to come to their own solutions. They participate in all discussions and decide on their own timetable for negotiations. In litigation, the parties are subject to court calendars and deadlines and judges who make the ultimate decision.
- Level of conflict. Litigation is an adversarial process with a win-lose mentality. Although many litigated cases do settle eventually, the aim is to get as much out of the other party as possible. Collaborative divorce encourages spouses to find common ground and communicate openly, honestly and with mutual respect.
- Role of attorneys. In collaborative divorce, each party has his/her own attorney to provide legal advice and facilitate negotiations. The goal of all discussions is settlement. If the parties cannot come to an agreement, they must get new attorneys and start over in court. As a result, collaborative attorneys are not incentivized to encourage a party to seek litigation. In litigation, however, the role of the attorney is to be a vigorous advocate and “win” for his/her client.
- Experts. In litigation, each side will hire experts to support their position. With collaborative divorce, the parties receive assistance from an interdisciplinary team of health care professionals and financial neutrals. Health care professionals (mental health and child specialists) assist the spouses with identifying impediments to the process and/or raise certain emotional concerns that need to be addressed so they can find a solution that works for them and their children. A financial neutral is involved to analyze and report on financial options for both parties so spouses can come to an informed and amicable financial settlement.
- Time and money. Court battles often drag on for years and even when settled, it is often after the parties have spent significant funds. Attorney’s fees, court costs and separate expert witness fees for each party can quickly escalate. Collaborative divorce does employ attorneys and experts. However, the process is generally faster since attorneys are focused on helping find agreement rather than fighting over every issue and experts are jointly retained. This saves time and money for both parties.
- Satisfaction. Parties tend to be more satisfied with a settlement they negotiate as opposed to one that is imposed on them. Experience has shown that Agreements created in the collaborative process are less prone to raising post-divorce controversies between the parties. A lasting Peace becomes the norm!
The decision of which divorce process to undertake is an important one. If you are considering divorce, contact us to discuss which option would be best for you and your family.