A collaborative divorce is an option for many parties because they can potentially resolve their divorce matter outside of court. When a divorce settles outside of court, it can reduce fees and animosity. It can also allow parties to co-parent better in the future.
Many parties should at least consider the option of collaborative divorce before engaging in litigation. It will not work in every instance, but it might work in more instances than many think.
Is Honesty Required?
Is it necessary that both parties be completely honest for a collaborative divorce to work? In other words, do parties really need to put everything on the table for the process to work? Or can a party withhold critical information in the process?
Some might be focused on the result that they want to get in the case. Thus, they might be tempted to withhold critical financial information throughout the process. The withholding of financial information could encompass a litany of items, including a new job opportunity, a potential pay raise or promotion, some commission income they stand to make in the future, etc.
Others might want to withhold their various motivations for the result they want in a case. In other words, they might want a particular result regarding child custody or property division. However, they might keep their true motivations for that child custody or property division resolution to themselves because they worry that if their soon-to-be ex-spouse knew their real motivations, they would never agree.
The reality is that in collaborative divorce, complete honesty is required. If both parties are not going to be completely honest about their true interests (versus just their positions), an amicable result in the collaborative process is rarely possible. Further, if a result were to be reached in collaborative divorce that was based on misrepresentations or omissions, litigation may commence soon after because the other party feels duped. Trust may also be breached such that effective co-parenting counseling may not be possible.
Most participation agreements also have language in them that requires that parties will engage in full disclosure. Full disclosure encompasses financial information. But it may also encompass many other important items, including the parties’ true motivations and interests. Even the conduct during the marriage (that led to the divorce itself) may end up having some relevance where one party has not been fully transparent and honest.
If Honesty Is In Question, Collaborative Divorce Will Not Work
For parties who want to engage in a collaborative divorce, both parties must be completely honest and transparent. Honesty and transparency is the hallmark of entering into any agreement that works in the short and long term. At the same time, if one party is not willing to be completely honest and transparent, collaborative divorce is probably not the right approach for resolving the divorce.
Collaborative divorce is not to be used, for example, to truncate the process such that the wool is pulled over the other party’s eyes on financial matters and other important facts. It requires that everything is put on the table.
Collaborative divorce should not be used where there is a power imbalance or where one party threatens war in court if the other party does not agree to the process. Coercion or duress is not a proper way to get the other party to the table.
Collaborative divorce also will not work if there are various pre-conditions being insisted upon by one party before it even begins. The process should not be intermingled with leverage playing.
Thus, for parties who are willing to engage in an above-board matter with full transparency and honesty, and without threats and coercive behavior, collaborative divorce can be a good option. But one of the first questions many should consider is whether that is possible.