Family Law

The Road Not Taken                               (Litigation vs. Collaborative Divorce)

Sometimes, the last thing spouses agree about is that the marriage should end.  Unfortunately, that decision is merely the start of a journey. The journey can be long, tiresome and confusing.  It does not need to be that way.

Let’s assume Paul and Linda have decided to end their marriage. They both have good jobs.  They have accumulated assets and debts.  They have two daughters, Heather and Mary, ages 10 and 7.  Paul and Linda do not hate each other, but the trust is no longer there.  They are both fearful of what the future will hold after they split.

Standing at the crossroads, they consider two different paths. One is litigation and the other is Collaborative Divorce.  Let’s assume that the fear, anger and distrust take control and Linda files suit seeking Equitable Distribution, Child Custody and Support.  Linda’s attorney recommends (and Linda agrees) to include an attorney’s fee claim relative to the Child Custody claims.  When the deputy serves these papers on Paul, he is livid. Paul hires his own lawyer and they file their Answer and Counterclaims.  Paul and Linda are now engaged in court-sanctioned combat.

If we assume that Linda’s Complaint is filed on January 1, Paul will likely file his Answer and Counterclaims sometime in late February.  After that, the parties will serve discovery requests on each other. This exchange of information and documentation will likely stretch out into mid-summer.  During this time, the parties may work out a custody arrangement for the children.  If not, that issue will need to be tried.  If litigation is required to resolve child custody and child support, that would likely occur sometime in late spring or early summer.  If depositions are required, they will cause further delay.  The Court will order the parties to mediate both child custody (through the court system’s custody mediation program) and equitable distribution.  This generally means two separate mediations.  If mediation is unsuccessful, the parties will create a pre-trial order, which acts as a roadmap for the trial.  Once the case is ready to be tried, Paul and Linda must take their place in line and wait for their case to be scheduled for trial. If they are litigating all the issues raised in the pleadings, their trial could take several days to conclude.  Given the crowded court dockets in most districts, Paul and Linda would be unlikely to have a complete resolution of their case by the one-year anniversary of Linda’s Complaint filing.

However, if Paul and Linda opt for a Collaborative Divorce, they would each hire their collaboratively trained lawyer on January 1.  Sometime during that month, the parties and their attorneys would conduct their 1st 4-way meeting where they will sign a Participation Agreement, identify issues of disagreement, create a plan to move forward and schedule a 2nd 4-way meeting (usually 3 or4 weeks later).

After the first meeting, the attorneys will share information and documentation freely.  If Paul and Linda need an appraiser, financial advisor or counseling professionals involved, they will generally be identified and retained within the month following that first meeting.  During the second 4-way meeting, Paul and Linda may find that they can agree on several items.  As to the other issues, the parties and their attorneys discuss ways to come to a resolution that serves the needs of both Paul and Linda. In late April or early May, the parties and their attorneys are ready to draft a comprehensive settlement agreement that resolves all of the disputed issues.

Time is not the only difference between litigation and a collaborative approach.  With litigation, Paul and Linda remain distrustful of each other.  This impairs their ability to co-parent Heather and Mary.  While the litigation is pending, Paul and Linda remain in a state of reactive defensiveness.  This perpetual state of anxiety takes its toll on their physical and emotional well-being.  Paul and Linda each spend well over $15,000 in attorneys’ fees.  And ultimately, a judge decides Paul and Linda’s future.

With a Collaborative Divorce, Paul and Linda work together to create a parenting plan that serves the best interests of their daughters.  Their focus remains on resolving their conflicts rather than winning the battle.  They are able to think creatively to craft a settlement that addresses both their needs. Their conflict remains private and ends up costing a fraction of what they would have paid to litigate. Ultimately, it is Paul and Linda who decide how their futures will play out.

The traveler in Robert Frost’s poem comes to an intersection and chooses the road less traveled.  He tells us that choice has made all the difference. Choosing litigation is easy, but the path is long, painful and expensive.  The Collaborative road is not without its struggles, but at the end of the journey, the travelers are less exhausted and have more money left to spend on the things that matter.  When you are standing at the crossroads of divorce, why not choose the path that decreases the anger, cost and delay?  Your choice may make all the difference. Contact Irvine Law Firm to learn more about Collaborative Divorce.