If you ask people who remained in unhappy marriages for a long time why they waited so long to file for divorce, their answers usually center on fear. Perhaps they feared being financially vulnerable after paying for a divorce and walking away with less than half of the marital property. Perhaps co-parenting after divorce seemed even scarier than the status quo of trying to keep the peace so the children would grow up seeing both parents every day. Conflict-avoidant people may have postponed their divorce because they could not stand the idea of being on opposing sides of a legal action with the person with whom they once exchanged wedding vows.
An unhappy marriage is a known quantity, but the idea that your divorce could turn uglier than you imagined and the court could deprive you of your property and most of your time with your children is terrifying. Collaborative divorce is an appealing option for people who fear letting the court interfere in their personal business and who want to resolve their divorce cases as peacefully as possible. It is beneficial for family law attorneys to add collaborative divorce representation to their repertoire.
Collaborative Does Not Always Mean Amicable
Collaborative divorce looks and feels a lot like divorce mediation, but it takes place outside of court, so from a legal perspective, it is different. Collaborative divorce proceedings take place before the couple files for divorce in court. As far as the court knows, the parties are still trying to make their marriage work. Collaborative divorce begins when each spouse hires a lawyer, and then the spouses and their respective lawyers all sign a collaborative divorce agreement; thus, the collaborative divorce agreement bears four signatures. Next, the parties engage in mediation-like discussions with or without a mediator; sometimes, the lawyers just negotiate between themselves without even hiring a mediator. This continues until the parties have formalized a marital settlement agreement, dividing their marital assets and debts. If they have minor children, they also draft a parenting plan during the collaborative divorce process. In the end, they file for an uncontested divorce in court and attach their marital settlement agreement and parenting plan.
Collaborative Divorce is Not Just for Celebrities and Celebrity Wannabes Anymore
The self-service web pages of family court systems often give the impression that uncontested divorce is only suitable for couples who do not own much property and do not have children together. Collaborative divorce is an exception to this; it offers a pathway to uncontested divorce for people who would not otherwise qualify for it.
Contested divorce cases tend to be complex, with couples dividing assets so valuable that it is difficult to determine their value. Case in point, Gisele Bundchen and Tom Brady took the world by surprise when they filed for divorce, and the court finalized their divorce the same day. This was only possible because of the collaborative divorce process outside of court; the couple’s prenuptial agreement also helped.
Collaborative divorce is becoming an increasingly popular option, especially among high-net-worth couples. People would rather see their marriage end in a law office than in a courtroom. It enables couples to divorce on their own terms.
Collaborative Divorce Can Make or Break the Attorney-Client Relationship
What happens if a collaborative divorce does not work out? When people get divorced in court, the court orders them to attend mediation, and if they cannot finalize their divorce that way, the court schedules a trial. If collaborative divorce negotiations break down, the parties terminate the collaborative divorce agreement and the couple files for a contested divorce in court. This is disappointing for the couple, but it is equally disappointing for the lawyers who represented them in the unsuccessful collaborative divorce proceedings. This is because the lawyers who participated in the unsuccessful collaborative divorce negotiations cannot represent either spouse in the resulting contested divorce case. Doing so would create a conflict of interest because the lawyers already have confidential information about both spouses.
Clients pay you if the collaborative divorce case where you represent them does not work out, but they do not jump at the opportunity to write you a five-star review. If a client expresses interest in collaborative divorce, you should make sure that your client does not have unrealistic expectations about which marital property they can keep. Make sure, before you sign the collaborative divorce agreement, that collaborative divorce is about negotiation and compromise. If a client wants someone to show their ex who is boss, that someone is a judge, not a collaborative divorce lawyer.
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