Last week, we introduced the concept of collaborative divorce and explained why it can be a positive, creative choice for some people to negotiate a settlement agreement that meets the unique needs of the family, especially if children are involved. Today, we will talk about some potential concerns to consider when deciding whether to use collaboration.
An important decision
The decision whether to use the collaborative process should be made carefully in consultation with a family lawyer with collaborative training and experience. It is not right for every divorce and the client should weigh the pros and cons thoughtfully. For example, if the emotional distress from being in the same room with a spouse is severe, it may not be worth going through a series of meetings together, although a divorce coach can be brought in as a neutral expert to help the parties through emotional and communication difficulties.
Or, if a soon-to-be-ex has a history of dishonesty, it may be smarter to require him or her to face formal discovery in the court process, rather than trust that he or she will be forthcoming in collaboration with all relevant documentation and information.
Obviously, if a party has been violent or abusive, collaborative divorce is not likely to be a good choice. In fact, Pennsylvania’s relatively new laws that regulate the use of collaborative law provide that a party’s attorney must ask the client if he or she has engaged in “threatening or violent behavior” toward the other spouse or any nonparty participant.
If the lawyer learns or “reasonably believes,” either before or during the process, that any party has a history of this behavior, the process may not go forward without consent and adequate assurance of safety during the collaborative process.
Finally, while for many collaborative divorce may end up costing less than a traditional proceeding, that outcome is not a given. If negotiation is not fruitful and many four-way meetings become necessary, the cost of paying two attorneys at each of those meetings plus any neutral experts can add up.
This can be especially true if for any reason the collaborative process ends, and the parties must start over using a different process with new lawyers.
When the circumstances are right, collaborative law can be a great option in divorce, but any prospective client should take time to talk to his or her lawyer in detail to make an informed decision about which process to choose.