The Process Options for Divorce: Divorce Litigation and Collaborative Divorce

Does control over the outcome of your case matter to you?

Divorce Litigation means letting a judge or jury make the decisions regarding your family's future. Litigation is sometimes necessary or unavoidable. However, given the choice, litigation should be avoided. Studies have shown that litigation can be damaging to the parties' future co-parenting relationship, to their own emotional well-being, and the litigation itself and its after-effects can be harmful to the children, often for the rest of their lives.

Before considering the benefits of collaborative, it's important to what litigation looks like and why it can be so harmful.

In divorce litigation, the object of the litigation process is that someone wins and someone loses–the parties are attacking each other through their lawyers, who are hired to be their warriors, in a battle consisting of legal arguments and witnesses testifying, saying horrible things about people they once loved and about their child's other parent.

It is no wonder the relationships are worse after a court trial. The litigation process is often a continuation of the same arguments that the couple has been having for years, each party airing their previously private dirty laundry—now in a public forum. The Court may make final rulings but the conflict may very well continue for the rest of the parties' (and their childrens') lives.

A Collaborative Divorce offers you more control over the outcome of your case.

Does privacy matter to you?

Anybody who has been to a divorce trial knows that it is a public forum–any part of your trial or private life can heard. While there isn't always a large audience, anyone can walk in and out of your divorce trial at any time.

Also, the record of your case is all available to the public, especially in today's digital world where people know how to access sites which are intended to be private. Historically, if no one was in court to hear the trial, except for reports from the couple who were divorcing, the public wouldn't have access to what had been said in the courtroom.

However, nowadays, virtually anybody can read every filing in your case and can find the transcript from the court reporter to know everything that was said about each other during the trial. Those things could be used against you in your employment and personal relationships—even the parties' children can one day read all the venom that was spoken between their parents. And even if no one does hear or read what was said, just the fact that it's not private and available to anyone in the future is unsettling.

When you have a Collaborative divorce, the sessions are almost always conducted in a private office.

Typically, it is one the two lawyers' offices, or the Mental Health Professional or Financial Professional's office. The only things that will be filed in your case as a matter of public record will be the petition for divorce, a notice that the parties have chosen collaborative divorce and your final divorce decree. And even the property portion of the final decree can be kept private by putting in into what is called an Agreement Incident to Divorce, which can be sealed or not even filed with the Court.

A Collaborative Divorce offers the privacy that litigation never can.

Does long-term, enduring resolution matter to you?

The goal of Collaborative Divorce is to resolve the parties' conflict and to give the parties tools to enable them to manage any future conflict without further damaging their relationship and their children's emotional and psychological well-being. In Collaborative Divorce, each party is represented by a lawyer who is trained in the Collaborative Divorce process.

If done properly, you also have a team working for you and your family, including a mental health professional who is specially trained in helping parents design their parenting plan and also helps them communicate in the meetings to reach the best option for themselves, their spouse and their children. The other member of the team is a financial professional who assists the parties with financial education about budgeting for their future and the options for the most advantageous division of their property so that each will have a stable and secure financial future as will their children.

The Collaborative Divorce process helps clients begin the healing process for themselves and their family before the divorce is even final and offers the opportunity for an enduring resolution.

Where does mediation fit in?

Many people have also heard of mediation. Most courts nowadays require the parties to go to mediation prior to a final hearing in their case. While many cases settle in mediation, it is usually in a one-day or limited time-frame and the limited time frame does not allow or promote the same kind of fully informed and well-thought out decisions that the Collaborative Divorce process provides.

While most mediations are a one-day event, the Collaborative Process is made up of a series of short, approximately 2-hour meetings, which enables the parties to become fully informed about the details of their property and consider the options regarding their parenting plan and the division of their property with calm deliberation. If there is an issue or two that is not able to be resolved in the Collaborative Process, the parties can also meet with a mediator to help them get past that last hurdle, so even if all the issues cannot be resolved within the Collaborative Process, going to court for a trial is still not usually necessary.