The following article was written by Abbie Niehoff, financial planning and litigation support paralegal at Councilor, Buchanan & Mitchell. Abbie has several years’ of experience helping clients with the financial planning aspects of collaborative divorce. For more information about this article, or to contact Abbie or another member of CBM’s divorce financial planning team, please fill out this form.
When a person is walking down the aisle on their wedding day, the last thing on their mind is the possibility that one day the person standing in front of them, the love of their life, might be sitting across from them at a divorce negotiating table. At that moment, they picture spending the rest of their life with that person. They picture raising children together, taking long walks on the beach together hand in hand, growing old together and racing one another down the hallway in wheelchairs at a nursing home. Fast forward through the years and those two love birds might not even be able to look at one another anymore.
Divorce is definitely not the happily-ever-after that most couples dream of. However, a divorce does not have to turn into World War III either.
Unlike a traditional, litigated divorce that often results in a lifelong resentment of the other spouse, collaborative divorce focuses on the divorcing couple working together, compromising, and being empowered to decide the most equitable split. A collaborative divorce also puts the divorcing couple in a position to maintain a positive relationship going forward where there are open lines of communication, especially when children are involved. When the couple decides to collaborate, instead of battle, the couple can save time, money and preserve their dignity. Collaborative divorce can be beneficial to couples at all economic levels. The wealthier the couple, the more they have to lose in never-ending courtroom battles and court-imposed settlements.
Nearly 30 years ago the Collaborative Divorce model was developed by attorneys, financial planning experts and mental health professionals who observed and concluded that traditional litigated divorce often had a detrimental impact on the couple and their families. Since then, the Collaborative Divorce model has grown rapidly in popularity throughout the United States, Canada, Europe and elsewhere because it has proven to be a much healthier and humane way to get divorced, especially when children are involved. Instead of going through the court which often arbitrarily splits up assets, the Collaborative Divorce model allows the couple to negotiate, cooperate and, in the end, with guidance from attorneys, financial planners, and mental health professionals, they get to decide how they are going to divide their assets.
In the Collaborative Divorce model, the divorcing couple contractually agrees to:
1. Openly and honestly share information,
2. Negotiate in good faith, and
3. Settle their differences outside of court.
The only time a couple who chose the collaborative divorce model will appear in court is when the judge approves the uncontested, self-imposed settlement agreement.
The Collaborative Divorce model tries to produce a positive outcome for both parties. If the couple can commit to resolve their issues collaboratively, then they may reap several substantial benefits, notably, being able to maintain the lifestyle they have become accustomed to. Several other benefits include:
1. It is generally less expensive (most of the time)
Each party hires their own attorney, they share a financial neutral and it is up to them whether they share a mental health professional. Some couples share one, sometimes each divorcing spouse hires their own. Some couples decide to opt out entirely of having a financial neutral and/or a mental health professional involved in their divorce. However, most couples agree to share the cost of the financial neutral and the neutral mental health professional. There is only one court appearance at the end of the process, so legal fees are lower.
2. It takes less time
Because the couple agrees to openly share financial information, there is no need for discovery and interrogatories. Provided that the couple does not hide assets and shares all necessary information, the time table to gather all documentation is minimal. The collaborative process also eliminates having to deal with the court’s busy schedule. The couple meets with their attorneys and the neutrals in a group setting when they are available to meet, not when the court is available to meet (and is backlogged by 6 months).
3. Fewer hard feelings
The collaborative process allows the parties to collaborate and come to mutual agreements on their settlement. There is less fighting and less distrust. This sets the stage for a positive relationship going forward. This is especially beneficial when there are children involved and there is ongoing communication between the ex-spouses. It sets the ex-spouses up for a productive co-parenting relationship.
4. More power over the outcome
Each spouse takes an active role in determining the outcome of the settlement. They each get to decide what they agree to and what they don’t agree to. Instead of having the outcome put in a judge’s hands, the outcome is put in the couple’s hands. This leads to an equitable and fair split of assets that allow each person to maintain the lifestyle they are used to.
The collaborative process is not for everyone. It only works for some couples and should not be considered as an option if there is a history of physical and/or mental abuse, intimidation, an imbalance of power in the relationship or fraud. These types of cases are better off using the traditional litigated method of divorce. For the collaborative divorce process to work, both spouses need to be dedicated to collaborating, working together and being open and 100% honest throughout the entire process. If a couple can set aside their differences to settle their parenting and financial issues, then the Collaborative Divorce method would be a good fit for them. However, if they don’t think that they can set aside their differences or hold to much anger and resentment towards one another, then a collaborative divorce may not be suited for them. If a couple starts down the collaborative path and they decide that it is not for them, then they must withdraw from the process and proceed with the traditional litigated route.