Collaborative Divorce? Don't Hold Your Breath.
In recent years, the idea of collaborative divorce has become more popular. The idea of working out all of the details related to child custody, alimony, and property division out of court does seem attractive. It's almost too good to be true. It's proponents claim it is a great alternative to the drawn out, painful, and costly divorces. It keeps the lawyers at bay because they agree to withdraw from representation if their clients cannot come to an agreement.
Supporters of collaborative divorce, however, seems to forget that people get divorced for a reason. In order to collaborate, people usually need to agree-meaning that that they still get along on some level. In many cases, one spouse has superior resources at his or her disposal and therefore may be able to dominate the process through the threat of litigation (which the other spouse can no longer afford). Some spouses are emotionally dominant and will use the process, unchecked by the fairness that a judge will give to the situation, in order to get what they want.
Collaborative divorce doesn't save money, either. Proponents claim that filing fees are waived. In the end, only a court of law can grant a divorce and someone still has to file a lawsuit with the requisite $167 filing fee (in North Carolina). The spouses are still paying their attorneys as they would in the traditional divorce case. If the process fails, they will have to retain new lawyers to litigate the matter. Again, at this point the dependent spouse may be out of resources to hire a new lawyer. This could be an incentive for the spouse in better financial position to go through the collaborative process in order to exhaust his or her opponent's resources (this, of course, would be unethical of his or her lawyer).
Collaborative divorce lawyers argue that they give their clients advantages by "not putting their lives in the hands of a judge." Clients in the traditional divorce case don't necessarily give up control to judges, either. Their attorneys still try to work things out and often do. It's only up to a judge if you go to trial-and most cases do not go to trial. Today's family courts refer cases to mediation and traditional lawyers use a variety of means of alternative dispute resolution. So the assumption that going to a traditional divorce lawyer equates to giving up control to a judge does not hold water.
Traditional divorce already has many of the supposed benefits of collaborative divorce. Attorneys do talk to each other, do realize that it is better for their clients (and their children) to work things out, and really do try to reach agreements for their clients. The only thing that collaborative divorce adds is that the attorneys will withdraw if no agreement is reached. And when that happens, clients have to go through the additional expense of hiring new lawyers and paying them for work that their previous lawyers already did.
To this author, this approach assumes that divorce attorneys try to avoid settling cases so that they can pad billable hours through litigation. I don't subscribe to this cynical approach. My experience is that most attorneys represent their clients interests zealously and honestly. Sometimes this includes going to trial; these cases would have to go to trial even had they begun in the collaborative process.
The only difference is that their clients had to hire two attorneys.
Supporters of collaborative divorce, however, seems to forget that people get divorced for a reason. In order to collaborate, people usually need to agree-meaning that that they still get along on some level. In many cases, one spouse has superior resources at his or her disposal and therefore may be able to dominate the process through the threat of litigation (which the other spouse can no longer afford). Some spouses are emotionally dominant and will use the process, unchecked by the fairness that a judge will give to the situation, in order to get what they want.
Collaborative divorce doesn't save money, either. Proponents claim that filing fees are waived. In the end, only a court of law can grant a divorce and someone still has to file a lawsuit with the requisite $167 filing fee (in North Carolina). The spouses are still paying their attorneys as they would in the traditional divorce case. If the process fails, they will have to retain new lawyers to litigate the matter. Again, at this point the dependent spouse may be out of resources to hire a new lawyer. This could be an incentive for the spouse in better financial position to go through the collaborative process in order to exhaust his or her opponent's resources (this, of course, would be unethical of his or her lawyer).
Collaborative divorce lawyers argue that they give their clients advantages by "not putting their lives in the hands of a judge." Clients in the traditional divorce case don't necessarily give up control to judges, either. Their attorneys still try to work things out and often do. It's only up to a judge if you go to trial-and most cases do not go to trial. Today's family courts refer cases to mediation and traditional lawyers use a variety of means of alternative dispute resolution. So the assumption that going to a traditional divorce lawyer equates to giving up control to a judge does not hold water.
Traditional divorce already has many of the supposed benefits of collaborative divorce. Attorneys do talk to each other, do realize that it is better for their clients (and their children) to work things out, and really do try to reach agreements for their clients. The only thing that collaborative divorce adds is that the attorneys will withdraw if no agreement is reached. And when that happens, clients have to go through the additional expense of hiring new lawyers and paying them for work that their previous lawyers already did.
To this author, this approach assumes that divorce attorneys try to avoid settling cases so that they can pad billable hours through litigation. I don't subscribe to this cynical approach. My experience is that most attorneys represent their clients interests zealously and honestly. Sometimes this includes going to trial; these cases would have to go to trial even had they begun in the collaborative process.
The only difference is that their clients had to hire two attorneys.
Labels: Collaborative Divorce
posted by Running With Plants at
9:10 PM
3 Comments
