Collaborative, Mediation, or Litigation: Which Divorce Process Will Work for You?

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Last week I attended an eye opening event – the Annual Conference for Collaborative Divorce Texas.   I had the pleasure of listening to top Texas collaborative professionals (including several from Austin).  More importantly, I had the opportunity to listen to a panel of three divorced couples discuss the pros and cons of their own collaborative process.

Collaborative Divorce is an alternative method of dispute resolution. Collaboratively trained attorneys and other professionals believe that they can improve the process of divorce and the possible outcomes long-term. As its name states, the process is collaborative.  The couple works with a team of professionals including two attorneys (one for each spouse), a neutral financial professional (the ‘F.P.’) and a neutral mental health professional (the ‘M.H.P.’).  A cornerstone of this process is a couple’s willingness to be open and honest about what they need from each other in order to move forward. Two commitments are critical to the success of the process: The couple attempts to avoid rehashing the past and agrees to share all the information required to make decisions in divorce- including financial information.

The collaborative divorce process first identifies each spouse’s interests – emotionally and financially.  Then each spouse meets with their own attorney (separately) and each ‘neutral’ professional (together or separately).  The couple and professionals then meet as group – usually more than once – to discuss options for divorce and whether those options match their interests.  Ideally, this ‘interests-based’ negotiation creates a plan for divorce that is memorialized in a divorce decree.

If a spouse feels the need for additional emotional or financial support beyond the ‘neutrals’, they are free to use non-neutral professionals at any stage who can help that spouse understand his or her own interests or explain a complex topic.  As a collaborative divorce trained Certified Divorce Financial Analyst, I can serve as either a neutral or in a capacity that is not neutral – educating a single spouse and/or representing a single spouse’s interests before, during and/or after the collaborative process.

The Upside

Collaborative works best when the couple, despite disagreements, wants to work out their issues together in a way that fits their family uniquely in the long run.  And they are willing to listen to and appreciate their spouse’s point of view. For example a standard possession order or child support calculation set by their state’s legal family code may not be what the couple wants or needs.  In collaborative, a couple can create a plan that works for them based on their own mutual agreed upon interests. Because spouses have the opportunity to hear each other’s’ hopes and concerns for the future, the collaborative process may yield a chance to be able to work with a former spouse on future mutual goals.  For many, that means better parenting but for others, emotional (or maybe financial) closure.

This process also works well for couples that have different degrees of information regarding their own family.  Couples hear from all professionals. If one spouse has fallen behind on the financial, emotional or parenting status of the family, the process allow time for that spouse to get educated and catch up. One of the couples on the panel who completed the process said the combination of legal, financial and emotional support provided a greater return for their money than going it alone.

If you can no longer be in the same room with your spouse or you cannot trust that your spouse will provide complete financial information, you may think that this process is not for you – but it may be!  You may want to read on and give this process a chance. In fact, a contentious divorce may be best suited for the collaborative process.

Because two attorneys (and other professionals) are involved and the process can take time, the cost collaborative may be the same (or sometimes even more) that a mediated or a litigated process.   If done correctly however, the return on that investment of time and money might be worth the benefits. Especially when couple must co-parent after the divorce is finalized.

Collaborative vs. Mediation

Prospective clients who are interested in learning about the divorce process often ask me about the difference between mediation and collaborative divorce.  They hear from other divorce professionals (or friends/family) that there is nothing to prevent couples from creating a unique plan in mediation.  And that’s true.

However, unlike collaborative, couples in traditional divorce mediation often are in different rooms with their attorney, negotiating through an attorney mediator who (along with your attorney) will assess whether your proposal will hold up in court – in other words evaluating whether you’d “win” whatever you are asking for under the law.  Ideally, attorneys and spouses in the collaborative process are in the same room and consider every idea (a process called ‘option generation’).

Here is another potential downside to mediation: Some couples just want to ‘get it over’ so mediation often happens in the first 60 days after a divorce filing– the most stressful and difficult time to make well thought decisions for your family’s future.  The couple may not have had adequate time to be educated by or work with a mental health, parenting or financial professional.  The result can be expensive trips back to the courtroom after the divorce is final to resolve issues that mediation failed to address. Collaborative, ideally, allows time for education and decision making.

The Center for Integrated Divorce: An alternative to a mediated or collaborative divorce

Do couples interests really drive the collaborative or traditional mediated divorce process or does the law drive the process? I think it depends on the participants – meaning the professionals and couple involved in the process.  For example, attorneys may have different levels of experience and training to work collaboratively.  Attorneys could advise their client prior to group meetings to stick to what the law allows (their rights under the law), instead of encouraging that client to work with their spouse to meet his or her interests.  This can raise the level of anxiety in the process.

Couples are also concerned that that the collaborative process requires them to find new professionals (including new attorneys) if collaborative fails to yield a plan for divorce.  Thus a failed process may mean a very expensive divorce.  However, couples may not know that they can bring a mediator into the collaborative process to resolve disputes before completely abandoning ship and landing in a courtroom.

Divorcing couples are concerned about cost because of the number of professionals involved in both collaborative and in the mediated process I’ve described.  However, as I make a case for in my book, “I Now Pronounce You Financially Fit: How to Protect Your Money in Marriage and Divorce”, more professionals can save money and yield better returns in the long run.

I think there is a way that some divorcing couples may be able to drive the divorce process and keep costs within their control.  I’ve witnessed this in my own practice.  This experience lead to the formation of The Center for Integrated Divorce (CID).

Legal professionals are not the driving force in the CID process.  Non-attorney mediators are at the center of the process.  They do the initial consultation and help the couple decide whether emotional, parenting, financial or legal support is needed.  Yes, legal. Everyone deserves to know their rights under the law.

The CID process is uniquely positioned to work with couples who want to work together in order to divorce successfully but believe that they may need emotional, financial and legal support to do so.  The ideal couple for CID doesn’t want to litigate issues.  They may already understand and agree on their interests.  The couple can be in the same room with each other and have a mature discussion about the future without rehashing the past.  Many ideal CID candidates have been separated for a time or are older.  They have a unique plan that they think they can agree on that has nothing to do with their state’s laws regarding divorce.  After all, they believe, divorce laws are meant to be the decider of last resort.

The ideal CID couple has considered filing for divorce on their own without the expense of attorneys or other professionals.  Once they go down that path they realize they need a little help.  They may want help telling the children about the split, talking to each other about sensitive topics or avoiding financial missteps.

The Center for Integrated Divorce encourages couples to use the professionals they need.  I believe it provides the benefits of collaborative and it can be less expensive.  Financial and parenting mistakes can be avoided.  The cost of revising the plan down the road are hopefully minimized.

Please do this…

If you are thinking about divorce check out Collaborative Divorce Texas and The Center for Integrated Divorce.  Please interview several attorneys. The questions you’ll want to ask are in my book.  Be sure to include an attorney who regularly uses the collaborative process to see if it will work for you. Get their point of view, hear their experiences before you decide how to proceed.

Certified Divorce Financial Analysts provide information, education and support in all types of divorce. Divorce Planning of Austin can put you on a path to informed financial decisions. Contact pam@divorceplanningofaustin.com

Silicon Hills Wealth and Divorce Planning of Austin work with clients and their attorneys to help insure that financial accounts are divided in the most efficient manner possible. Please contact Pam Friedman, CFP®, CDFA™ at pam@divorceplanningofaustin.com

Neither Silicon Hills Wealth Management nor Divorce Planning of Austin offer legal or tax advice. Please consult the appropriate professional regarding your individual circumstance.

Investment advisory services offered through Silicon Hills Wealth Management, LLC, a registered investment advisor

 

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