Collaboration and Divorce: The Pros and Cons
Can two people ending a marriage really cooperate to create good outcomes for themselves and their children? It isn’t easy, but it can be done—especially if they use the collaborate divorce process.
As tempting as some may find the idea of hiring a ruthless bulldog lawyer and going after the other person for everything they’ve got, divorce is tough enough without purposefully trying to cause more hurt. And if there are children involved, it’s even more important to keep conflict and anger to a minimum.
If you and your soon-to-be ex-spouse are willing to approach the divorce process with openness and a desire to compromise, a collaborative divorce can have many positive benefits for you, your partner, and your children. The “full” collaborative team consists of the two parties, two attorneys, two trained “coaches” (one for each party) or one “neutral” coach (if you so choose) to facilitate effective communication, a neutral financial consultant, and a child specialist to serve as the voice of your dependent children.
Here are just a few of the major advantages in choosing collaborative divorce over a traditional “courtroom” divorce.
Better Overall Outcomes for Everyone
Because a collaborative divorce requires that both parties come together in a spirit of cooperation, negotiations are often less adversarial than in a traditional divorce process. The voluntary nature of a collaborative divorce makes it far more likely that you’ll both be starting off on the right foot—with an eye toward compromise and securing a win-win agreement.
Stops the Revolving Door of Returning to Court
One of the frustrating things about divorce can be when you think it’s all over but your ex-spouse refuses to honor agreements already made. This often opens up an endless cycle of fighting and going back to court, which is expensive and emotionally draining. But with a collaborative divorce, decisions are made jointly by both parties—not mandated by a judge—which often results in everyone trying a lot harder to follow through on their commitments without putting up a fight.
Happier Kids (this one is big!)
The collaborative divorce process gives children a much stronger voice than in a traditional divorce process. A child specialist will speak with your kids and find out their concerns and preferences and then act as their advocate during the negotiation process. As you can imagine, this critical component can really help dampen down the hostility and adversarial dynamic that sometimes exists between two parents who each think they know better than the other what is best for the children. Consider, too, that in a traditional divorce, a judge often makes important decisions about critical issues like visitation and child support, and he or she will do so without knowing you or your children on a personal level. But in a collaborative divorce, you and your spouse work together to make decisions you know will be best for the health and happiness of your most treasured concern, your children.
A Streamlined Process at Your Preferred Pace
Because you’re not beholden to the schedule of the court, you can move the process along at your own pace. You won’t waste time waiting to be scheduled to see the judge, waiting for your case to be called, waiting for your next hearing, and so on. Avoiding all these logistical delays can really help reduce everyone’s stress as well. Move quickly if you both want resolution as quickly as possible, or move more slowly if you need more time to deal with difficult emotions, give your children additional time to adjust, or for any other reason.
More Privacy and Confidentiality
When you go through a collaborative divorce process, much less of your private information becomes publicly available than if you go through litigation. The details of the conversations among you, your partner, and other team members are kept confidential, and no final paperwork is filed with the court unless and until both parties agree to the language used.
Often Less Expensive
In many cases, a collaborative divorce is cheaper than going the traditional litigation route. Even though there are more professionals involved—all of whom need to be paid—the process often is smoother and can completed more quickly that when the two parties are fighting to win in court.
Are There Any Potential Downsides to a Collaborative Divorce?
The list above explains just a few of the reasons you may want to seriously consider using the collaborative divorce process. In my many decades as a family law attorney, I have consistently witnessed that couples who choose this option experience a smoother separation and less conflict during negotiations and even after an agreement is reached.
That’s not to say a collaborative divorce is for everyone, or that it’s necessarily a perfect solution for you and your family. Here are some things to consider:
You can only use the process if both of you agree to it. You don’t have to get along or agree on everything (if you did, you probably wouldn’t be divorcing), but you DO both have to commit to a spirit of cooperation and compromise in your negotiations. If one person isn’t interested, or won’t stay committed to the process, it won’t work. Also, if you are not committed to having mature conversations in a business-like setting, but instead insist on speaking negatively about your former partner during the meetings, it would not be a good fit for you.
If you don’t trust your spouse to be honest about finances, it could put you at risk. Because this is a voluntary process, both parties must agree to be completely forthcoming about financial assets and debts—and it’s based on the honor system. You’ll have a mutual financial expert to help with negotiations and ask for additional documentation, but because there’s no court-ordered financial discovery process (subpoenas to obtain documents from third parties) in a collaborative divorce, honesty is essential.
A collaborative divorce isn’t always the cheaper option in the short run. In fact, sometimes it’s more expensive (but certainly not always). You’ll be working with your chosen team of collaborative professionals, all of whom will be charging for their time. It’s up to you and your spouse how many experts to involve, but at a minimum, you should expect to have two attorneys. Then you could agree as necessary to add a neutral divorce coach, and a neutral financial expert--and if you have children, a child specialist. (Still, even if the short-term expenses seem higher, remember that you can move the process as quickly as you both agree to, and since you’ll both be more likely to be satisfied with the outcome, you’ll save money in the long run by avoiding further fighting in court.)
If you can’t reach an agreement, you’ll have to have another attorney for court hearings. At the outset of the collaborative divorce process, the parties agree that if either spouse backs out or if the couple is unable to reach an agreement, the process will end and a traditional litigation divorce process will begin. You’ll have to get new attorneys; however, the disclosure documents you have already exchanged will be helpful to your new attorney who would pick up where you left off. One important thing to note is that your collaborative attorneys are highly motivated to help you reach an agreement through collaboration, even if it is on a few of the issues, leaving one or two issues for the judge to decide for you.
The Bottom Line: It’s an Option Worth Exploring
Overall, the potential benefits to a collaborative divorce make it an option well worth considering. I’ve seen my clients who go this route secure far better outcomes for everyone in the family than most of those who take the traditional litigation route. The best way to make the determination if it’s right for you is to talk to an experienced collaborative divorce attorney who will take the time to learn about your specific situation and give you thoughtful advice. Contact us today for a confidential conversation.
Is Divorce Mediation Right for You? Here Are Two Emotional Roadblocks That Could Cost You Dearly.
One of the many potential benefits of divorce mediation over a litigated “courtroom” divorce is that both you and your partner can make mutually beneficial decisions together instead of relinquishing control to a judge. This is so important when it comes to making big decisions about your children, of course. But what about when it comes to property? I’d like to share some thoughts about how to make it work, what can get in the way, and use a few stories to help you decide if mediation is right for you.
Do You Want to Split the Baby?
Not literally! Now that I have your attention, let me remind you of a Bible story with which you may already be familiar. Two women who both claimed to be the mother of an infant child brought their case before King Solomon to settle the matter. Unable to determine which woman was telling the truth, Solomon ordered that a sword be used to cut the baby into two as a fair resolution that would allow each woman to have half a baby. One woman was satisfied with the judgement and agreed to the decision, while the other begged Solomon not to kill the baby but instead spare his life and give him to the other woman. It was her selflessness that showed Solomon she was the child’s real mother.
When you hear of a “split the baby negotiation,” this is the story being referenced. It typically describes a situation where both parties simultaneously win and lose in the agreement. It certainly describes what often happens in a divorce where the two parties can’t or won’t come to a mutual agreement about dividing assets and a judge has to make the final determination. Trust me—both parties are usually pretty dissatisfied.
Being Willing to Compromise Creates More Mutual Wins
When it comes to divorce, I think most people can relate to this feeling of both winning and losing at the same time. The dissolution of a marriage, the splitting up of a family, the splitting up of belongings and properties and assets are difficult to deal with. There’s pain in ending one chapter and hope for a fresh beginning—the best one can usually hope for is an experience that is bittersweet.
One of the reasons I love working with couples who use mediation to settle their divorce is because of the spirit of cooperation both parties try to embrace in the process. That’s not to say it’s easy for them—but the fact that they want to part peacefully starts them off on the right foot.
Still, no one is perfect, and we bring not only our recent hurt and disappointment into the divorce process but also our lifelong characteristics, habits, and attitudes. The mediation process is there to help everyone negotiate in a productive way with an eye toward win-win resolutions.
Entitlement and Resentment: Significant Emotional Roadblocks in Mediation
There are certain emotional roadblocks I routinely see get in the way of smooth negotiations. One of those is a sense of entitlement and a strong internal drive for people to make sure they don’t settle for less than they feel they deserve.
Entitlement and resentment often go hand in hand, as you can imagine. Even if you weren’t “keeping score” while you were married, at the end, you may find yourself making a mental tally of all the ways and times you believe you gave more than your spouse did and how unappreciated or taken for granted you now feel. Who earned more, spent more, did more housework, spent more time with the kids, enjoyed more time with friends or hobbies, had the better or worse extended family...there are countless reasons to feel you gave more than your spouse did and now maybe you want to make sure you are compensated for your sacrifices. After all, aren’t you owed for your trouble?
Resentment and entitlement are big emotional roadblocks that need to be overcome in order to enjoy a successful mediated divorce settlement. Let me tell you two true stories that may inspire you to check your resentment and entitlement levels before you get started.
The Marriage of Cream and the Old Faithful Geyser
Consider the 1993 landmark divorce case of Olga and Howard Cream. They were married in 1970, and in 1973 they purchased Old Faithful Geyser of California (yes, you can own a geyser!). For 15 years, they worked together to manage the property and run the on-site business. Then the marriage ended, and so did their desire to work together in the business.
Both parties claimed the combined value of the property and the business was $800,000, but neither one of them submitted an actual appraisal. Neither Olga nor Howard wanted to give up their half. Howard offered to buy Olga out at above-market value, but Olga declined. With the couple unable to come to a mutual agreement, the court stepped in.
Despite Olga’s repeated objections, the court ordered a nonbinding private auction. In this process, each party would enter a bid for one-half the value of the business, and whoever entered the highest bid would then buy out the other party at that price. Olga bid $596,000 and Howard was the auction winner with a bid of $600,000. The court valued the geyser at $1.2 million and awarded the property and business to Howard.
Here’s where it gets tricky. Howard was unable to make escrow, which then gave Olga the chance to buy him out for $596,000. So she won, right? She got the geyser and the business. But she didn’t feel like she won. She was very unhappy that she had to pay 50% more than she would have had to pay on the property both she and Harold originally agreed was worth $800,000, not $1.2 million!
Olga won the property and the business but lost nearly $200,000 she didn’t feel was fair to pay for it. Harold lost the property and the business but won because he was ultimately paid more than 50% of the value of the business.
Think about that. If Olga and Howard could have come to an agreement together rather than handing control over to the court, they might have both felt better about the outcome.
By the way, Olga filed for divorce in 1987 and the whole ordeal wasn’t over until 1993. That means they both endured five long years of stress, conflict, and legal fees. I wonder, once it was all over, did they both think the fight was worth all that time and trouble (and money)?
How Much Is That Thing Really Worth?
I had a similar case a few years ago (no geysers involved in this one). My client and her husband were both dead-set on keeping a piece of framed artwork they had purchased together. Either of them could have purchased the same print online for about $300, but for some reason, this particular framed piece became a sticking point and neither party would give it up. (Was their stubbornness because of emotional attachment or spite or a sense of entitlement? I never did understand!)
The other attorney and I finally convinced them to agree to a silent "auction" where each of them would bid for the piece and whoever placed the higher bid would “win” and pay the other party 50% of the winning value and keep the artwork. My client bid $1,500 and her spouse bid $800. She paid him $750 for his share and kept the artwork.
Technically, my client “won” because she got the keep the artwork. But she didn’t just pay him 50% of the real value. She paid him quadruple what she should have--enough that he could buy two more of the same print and get them framed!
Technically, he “lost” but he came out hundreds of dollars ahead on the deal. My client “won” the bid and kept the artwork but paid more than double its value. I couldn’t help but think both of them were operating from a place of resentment and entitlement—they both wanted to win, and that was more important than any sense of compromise either of them could muster.
But What If You Really ARE Feeling Resentful and Entitled?
Divorce is difficult for everyone, and it’s natural to have lots of negative emotions. If you didn’t, you probably wouldn’t be splitting up. It’s understandable. And it doesn’t mean mediation is off the table. But if one or both of you approach the situation with the intention of refusing to settle for less than you feel you deserve, it’s going to be practically impossible to arrive at mutually satisfactory outcomes. You’ll lose more than you win. If you want to make sure your partner pays big time, hire a bulldog lawyer and fight it out in court.
But if you want to experience as many wins as possible, use mediation. Mediators are trained in helping negotiations run smoothly. We are skilled in conflict resolution and in facilitating constructive conversation. We help both parties practice putting emotions aside and stay focused on a spirit of cooperation and compromise. There will still be bumps in the road, but the important thing is that a mediator will help you both stay on track and aim for positive outcomes.
Collaborative divorce is another way to negotiate without giving control to a judge. In collaborative divorce, there are two trained divorce coaches who are skilled at helping you put your emotional roadblocks aside and have effective communication during a difficult time. Learn more about collaborative divorce.