Responding to Criticisms of Collaborative Divorce

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Change can be difficult for many to embrace. Likewise, some family lawyers who litigate cases may offer some criticisms about collaborative divorce. Some family lawyers might even believe that individuals should avoid collaborative divorce and just litigate their case.

The common criticisms of cynical family lawyers are two-fold. Some argue there is not a guarantee of a settlement (or a peace). Thus, they argue that it simply make sense to prepare for the inevitability of a litigated divorce.

Some also point out that collaborative divorce can be expensive. In other words, if the case does not settle, the parties will have to hire new litigation counsel and pay filing fees and the costs associated with the litigation. For this reason, they argue that it’s better to skip the step of trying to settle outside of court through collaborative divorce by just litigating the case.

While these criticisms are pessimistic, the reality is that all of that could theoretically turn out to be true. One has to concede that not every case settles in the collaborative process. Further, if the case does not settle, the parties would have to hire new litigation counsel.

But are these good reasons for parties to not even try it? And are the objections also based on the fact that some family lawyers are merely change averse? In other words, is it possible that they are simply used to litigating their divorces and not keen on trying something new?

In responding to the criticisms head-on, there are other considerations that parties need to consider when they contemplate the idea of a collaborative divorce. The first one is that the collaborative process results in a team of professionals that help the parties work together to reach a settlement. This is because the details often hang-up the process of settlement. In other words, the details on custody, property and debt division, child and spousal support and lawyer fees are what cause lots of parties to go to trial.

However, in collaborative divorce, the parties will work with a divorce coach, child custody professional and a financial neutral. All of these knowledgeable professionals can help the parties get to a place of settlement on all of the important details (where this is not offered in traditional litigation).

The other information that parties need to consider when they look at the cost is this: If the case is litigated and the judge decides, will there be subsequent litigation? Put simply, when the judge decides, one or both parties are still unhappy to some degree with the result.

This often results in later motions to modify or motions for contempt where the parties are back in court. When one gets concerned about the cost of collaborative divorce, they have to consider the cost of subsequent litigation. They also have to consider the costs of depositions, subpoenas, discovery and expert witnesses. The reality is that while a collaborative divorce can be expensive, traditional litigation is usually not inexpensive, either.

In the end, isn’t it worth trying a collaborative divorce to see if a settlement can be reached? There certainly is no guarantee and, yes, it might not be cheap. But if you are not back in court on subsequent litigation, and you can get along with your ex on a diplomatic basis after the case, isn’t it at least worth the attempt?  Wouldn’t settlement  (if possible) be better than putting your family situation in the hands of one judge?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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