You may have heard of a thing called collaborative divorce that’s designed to take the conflict out of ending your marriage. But is a collaborative divorce the best option for your family law case? Or could you be better served by formal litigation or mediation?
Collaborative divorce is an alternative to the traditional adversarial family law process. It is designed to give you and your family tools to resolve your marriage as peacefully as possible. Collaborative focuses on teaching both spouses dispute resolution and communication strategies so that they can resolve problems and keep their case out of court now, and in the future should complications arise.
Unlike in a traditional divorce litigation, spouses in collaborative divorce aren’t working against each other to get their way in the Maryland divorce court. Instead, spouses work together with a collaborative divorce team to identify priorities and solutions to dissolve their marriage.
Like all legal cases, a collaborative divorce typically starts by meeting with a lawyer. Unlike a traditional adversarial approach, in the collaborative process both you and your spouse will frequently meet with your lawyers together. For the collaborative process to work, both spouses need to be committed to doing the work needed to avoid formal divorce proceedings and keep things out of court. If either spouse insists on their “day in court”, or if there are unhealthy power dynamics between the parties (like in cases of domestic violence), the collaborative process will not work.
Next, each spouse must hire his or her own attorney. Your collaborative lawyer will guide you through the process and advocate on your behalf at the negotiation table. It is important that the person you hire is a certified collaborative divorce attorney, well versed in a variety of alternative dispute processes and collaboratively trained. It is best to work with an experienced collaborative lawyer than can appropriately screen your case from the onset so that you don’t run the risk of starting over with new counsel if collaboration is unsuccessful. If collaboration fails, you will need to hire a different lawyer to take your divorce litigation case to court.
Once the lawyers are on board, your lawyer will work with you to identify your top priorities and concerns, and together the collaborative team will lay out any issues that need to be resolved before a final settlement can be reached. Your collaborative divorce attorney will help you consider options and strategies, and distinguish between your priorities and your preferences.
Unlike traditional litigation, collaborative divorce is a team effort. There may be experts and advisors that the couple agrees will help smooth the way to resolution, and others that one spouse or the other needs to work with individually before the case can resolve. Depending on the circumstances and issues in your family law case, your collaborative divorce team may include:
This team will help you consider how potential divorce solutions will work moving forward and anticipate problems that might bring you back to the negotiating table. The goal of the collaborative divorce team is to create a settlement that works emotionally, legally, and practically for you (your spouse) and your children.
The first collaborative meeting with both spouses and their attorneys will usually happen before the team is fully assembled (though it may be facilitated by the divorce coach). Each collaborative meeting will have the goal of identifying and resolving outstanding issues in your divorce. These meetings may often become emotional. However, the costs of walking out of the collaborative process and customizations that the process can provide motivation to keep you coming back to the collaborative table.
Collaborative is a “transparent process”. If either spouse gives up on the process, the collaborative divorce fails and the parties go back to square one. They must get new lawyers and start a new divorce litigation proceeding. Your collaborative counsel would be prejudiced by what they learned in the collaborative process and that is why they would not be able to represent you in court if litigation is required. Whatever was said during collaborative meetings can’t be used at court. The parties will have to prove their case without those admissions or the work of their collaborative professionals.
Ultimately, only a judge can dissolve a legal marriage. When you and your spouse successfully resolve all issues, including custody, child support, and division of the family’s property, your lawyers will put together a Marital Settlement Agreement, and all other paperwork for the court to enter your divorce.
The collaborative process isn’t right for every couple. Personality differences, power dynamics, and limited resources may all point in another direction. Collaborative divorce can cost more up front than filing a traditional divorce complaint -- though many families find themselves saving money over time by avoiding enforcement proceedings in the future.
Even where collaborative divorce isn’t an option, you may be able to resolve your differences without an emotional and expensive trial through the use of mediation. Mediation puts the parties together at the table -- with or without lawyers. With the help of a skilled facilitator, the parties work through all issues and try to reach a final settlement.
Both mediation and collaborative divorce are alternative dispute resolution methods that keep the parties out of court. Collaborative divorce may take longer than mediation, which is often just one or two sessions. While your lawyer may prepare you for mediation, if your lawyer does not attend mediation with you - you are somewhat on your own in mediation. It isn’t a mediator’s job to help you identify priorities or anticipate future problems. Instead, the mediator is focused on the dispute of the moment and works to help reach an agreement - although the agreement may not always be your most favorable outcome.
A mediator’s role may be more narrow than a collaborative divorce lawyer, but that doesn’t necessarily mean it is worse. Some parties don’t need the full collaborative process. They may have already resolved many of their issues or addressed their emotional concerns. In those cases, a mediation can save time and money while still letting the parties avoid the public exposure of divorce litigation.
Choosing the right process for your divorce isn’t always easy. Before you commit to the collaborative divorce process, speak to a Maryland divorce lawyer to weigh the pros and cons of each process, including traditional litigation, mediation, and collaborative divorce. Then you can choose the process that is right for you, your needs, and your budget.
At the Law Office of Shelly M. Ingram, our Maryland divorce lawyers are trained in collaborative divorce, mediation, and litigation strategies. We can help you decide which process is best for your family, and then stand by your side throughout that process. To talk to a collaborative divorce attorney or schedule a mediation, contact us today to schedule a confidential office consultation.