Collaborative divorce is one of those concepts that sounds great when you are faced with divorce but, in reality, is not what it seems. The problem lies in the way collaborative divorce is marketed and explained to a potential litigant. It is highly improbable that a non-lawyer will be able to comprehend the repercussions which are too often downplayed by collaborative divorce lawyers. So, you ask– what is collaborative divorce and the problems associated with this process?
Collaborative divorce is nothing more than the matrimonial law equivalent of “The Emperor’s New Clothes.” Family lawyers tout collaborative divorce as the newest alternative dispute-resolution device. The proponents will tell you that it is a model that is premised on all participants agreeing to work together in an honest, respectful and good faith manner to find a resolution. Both parties must retain separate “specially trained” attorneys whose primary job is to assist the parties in resolving the dispute. The parties and counsel are committed to achieving a negotiated outcome and it is agreed that no litigation will be commenced. In collaborative divorce, the parties and their counsel may also hire a team of “coaches” and financial and custody consultants to further assist in the settlement process. The collaborative team may include mental health professionals who serve as coaches for the parties, a child specialist to give the children a proverbial voice in the process and a financial analyst. The parties and their counsel are also required to provide sworn financial disclosures and engage in good faith disclosure of information relevant to settlement of the case. The parties and their lawyers are required to execute a “Participation Agreement” where they agree that if a settlement is not accomplished, the lawyers must withdraw from the process and the parties must start over and hire new lawyers for the ensuing litigation.
There are so many problems with collaborative divorce that it is impossible to adequately address them all here. So, in a nutshell, the brutal reality of collaborative divorce is that EVERYTHING that is done by a collaborative divorce lawyer to attempt settlement can be done by traditional lawyers. However, there is a bonus with a traditional divorce lawyer: You do not have to start over with new lawyers and spend additional sums of money if settlement negotiations fail. In collaborative divorce, if both parties pay retainers to the lawyers and hire a team of coaches, substantial sums of money will be expended. Therefore, if the collaborative divorce process fails, the parties must start over, pay additional retainers to new lawyers and hire more experts. However, the parties can accomplish the exact same goal with a traditional divorce lawyer and not have to start over if settlement negotiations reach an impasse.
Any divorce lawyer can try to settle the case and hire “coaches” or obtain joint financial valuations or engage in other methods to resolve the issues. This process is done more often than not and sometimes with the assistance of the judge who can work to narrow the issues or completely resolve the case.
If wasting funds were not enough, another problem with collaborative divorce is an ethical one. During collaborative divorce, the parties feel pressure and almost trapped to stay in the process because they expended so much time and money and would have to start over if it fails. It also confers a sense of power to the party who suggests ending the process if the other party does not want to litigate. One party can threaten litigation as a means to obtain a particular result. While all these power struggles are happening, the lawyer may be, in some respects, violating numerous ethical rules of professional conduct. For example, the rules of professional conduct provide that a lawyer must advocate zealously on behalf of a client. By tying the collaborative lawyer’s hands and limiting their representation to settlement creates a conflict. If a lawyer is limited to settlement, how can the lawyer exercise zealous representation? It is tantamount to asking a surgeon to perform surgery without a scalpel or other necessary tools.
The bottom line is that anything you can do in the collaborative divorce process, you can do in a traditional divorce setting but without the ridiculous limitations and potential for waste of funds.