To read Part 1 of Collaborative Divorce Q & A, click here.
How Can I Be Sure That We Will Find Out All the Information and That What We Get Is Accurate?
Just as in litigated cases, there is no guarantee that each party will be completely honest, but there are some extra protections.
The participation agreement signed by the parties at the outset is a commitment to honesty. No such agreement is signed in a traditional litigated family law case. The agreement also creates the basis for enforcement action or damages if dishonesty is uncovered. In Collaborative divorce cases, a joint sworn inventory and appraisement is signed by the parties certifying the extent and value of the parties' property. The atmosphere in a Collaborative case is more conducive to honesty because of the civility and reduced animosity that generally exist due to the process used. The parties may not be as tempted to cheat or shade the truth when they feel like they have some control of the process. Additionally, the Financial Neutral is skilled and trained in finding and identifying anything that may need to be examined more closely.
In the event that dishonesty occurs and is detected after an agreement is reached, the victim would have the same remedies available to a victim of dishonesty in a regular litigated case.
Will It Save Time or Money?
As is the answer to most questions you ask a lawyer, it depends.
Collaborative Law cases are not cheap and are not necessarily fast. But, neither are litigated cases. However, there are some possibilities for savings in Collaborative cases.
Since Collaborative cases are usually handled on an hourly basis, and each case is different, there is no way to guarantee savings, but there is a great potential for savings if the parties work hard and responsibly. Like any other family law matter, the amount of time involved, and therefore the cost, depends on how the parties act as well as the difficulty of the issues.
The parties have more control over the time commitment in a Collaborative case than in a litigated case and can avoid the time consumed in court appearances and in the heavy paperwork that often appears in litigated cases. In litigation, there are usually multiple court appearances and voluminous document discovery and review in Discovery. In Collaborative cases, there are multiple meetings, but many meetings are between the parties and just the Coach or Financial Neutral, which is much less expensive than having both attorneys present. The Financial Neutral typically manages the financial document production and organization for both parties together, and it is much more limited than in litigation.
If a case is unsuccessful and reaches an impasse, there will be considerable expense since both parties will have to hire new attorneys. The knowledge of that is part of the motivation and commitment of the parties to reach a settlement.
How Much Does It Cost?
There is no way to tell how much a Collaborative case will cost. It depends on many factors, especially the complexity of the issues and the abilities and interest of the parties in reaching agreements. There is usually no way to predict how much a traditional litigated family law case will cost either.
How Long Does It Take To Finish a Collaborative Divorce?
That is mostly up to the parties. There is a mandatory 60-day waiting period in Tennessee if you don’t have children, and a 90-day waiting period if you do. An agreement can be approved by the court at any time after that. In other family law cases, there may not be a minimum time, so the length of time involved depends on how well the parties and attorneys negotiate.
How Does It Protect My Privacy?
Court hearings in a litigated case take place in an open, public court. The Collaborative case is negotiated in private meetings. In litigated cases, a great deal of personal and financial information regularly finds its way into the public divorce records kept on file at the courthouse. In Collaborative cases, the information is discussed and shared in private. The parties control what information, if any, is put in public records.
Will It Work in a Custody Case?
Yes, it can. Many custody cases are resolved with a Collaborative approach, with the benefit that the positive qualities of each parent are not lost and both parties focus on the best interests of the children. Relationships are not destroyed along the way as the parties work out a settlement by working together instead of against each other. Sometimes we bring in a neutral child specialist, or we just use the Coach in other cases, to help the parties sort through the issues and work out solutions that fit their needs. That is generally much better than having a standard formula imposed by a court.
What if We Need an Expert to Appraise Property or Value a Business?
One of the great benefits of the Collaborative approach is that joint experts are hired by the parties, instead of having a battle of experts hired by each side. The parties save money using just one expert.
What if We Can’t Reach an Agreement?
In a very small number of Collaborative cases, an agreement cannot be fully reached. Sometimes a partial agreement can be reached and the remaining issues can be resolved by mediation, or going to court, if all else fails. The bottom line is that if the parties reach an impasse and cannot agree, the attorneys will withdraw and the parties will go to court to settle all remaining issues. Because of the cost, animosity, and time delays, that is not usually an attractive option.
What Is My Attorney’s Role?
Your attorney has a major role in advising and guiding you. Your attorney will usually not speak for you, which often happens in litigated cases. Instead, each attorney meets and consults with their client before, after, and between joint meetings and can take action during meetings to help guide the parties. There is regular and constructive representation, focusing on the attainment of a client's most important goals, throughout the process.