*Nicole Romero
Collaborative divorce is a settlement method being increasingly used in dissolution of marriage cases across the country.[1] Unlike mediation, the parties in a collaborative divorce arrangement agree in writing to solve the dispute outside of court and with the assistance of their attorneys, which are particularly trained in this method of alternative dispute resolution.[2] It differs from typical mediation in that the parties agree to adopt a “win-win” approach to their dissolution, mainly by incorporating the expertise of financial advisors, psychologists, estate planners, and even parenting and divorce coaches.[3] These professionals serve to help resolve the legal, emotional, and financial obstacles that make dissolution of marriage cases particularly difficult to settle out of court.[4]
Collaborative divorce has gained popularity in recent years due its low cost, especially when compared with traditional divorce.[5] The 40% to 50% savings can be attributed to the elimination of typical civil procedure processes, such as discovery and court appearances, which often make up a large portion of the expenses associated with dissolution of marriage cases.[6] Beyond financial savings, this approach also allows parties to address their personal issues, lack of communication, and emotions surrounding the state of their relationship.[7] Addressing the emotional complexities of divorce can be critical, particularly in cases with minor children.[8] This is often an area overlooked by family courts, which predominately focus on the technicalities of divorce, distribution of marital assets and liabilities, and parenting plans.[9]
However, collaborative divorce also presents unique downfalls not found in traditional divorce or mediation. Firstly, should the parties forgo their agreement and litigate, each attorney is required to withdraw from the case.[10] Additionally, if the collaborative divorce process fails parties, they will have spent significantly more in legal fees than if they would have otherwise gone straight to court.[11] Lastly, collaborative divorce taking place out of court can sometimes be more harmful than helpful for certain types of family cases. Cases involving domestic violence, mental disorders, and addiction benefit from the protections and structure provided in family court.[12]
Although collaborative divorce can be a means of achieving a more amicable dissolution, it comes with risks and costs. Parties should be realistic about whether they will be able to work together in order to avoid traditional litigation. Ideal candidates for collaborative divorce are parties truly looking for a more peaceful settlement and unwilling to spend excessive time and money in court.[13] Family attorneys specializing in collaborative divorce should also be honest with clients about whether their case is the kind that would benefit from this approach or whether their case calls for the protections and structure provided in family court.
* J.D. Candidate, May 2020, Florida International University College of Law
[1] Luke Salava, Collaborative Divorce: The Unexpectedly Underwhelming Advance of a Promising Solution in Marriage Dissolution, 48 Fam. L.Q. 179 (2014).
[2] Id.
[3] Id.
[4] Id.
[5] Geoff Williams, Why Collaborative Divorce Makes Financial Sense, U.S. News (Aug. 19, 2013, 10:15 AM), https://money.usnews.com/money/personal-finance/articles/2013/08/19/why-a-collaborative-divorce-makes-financial-sense.
[6] Luke Salava, Collaborative Divorce: The Unexpectedly Underwhelming Advance of a Promising Solution in Marriage Dissolution, 48 Fam. L.Q. 197 (2014).
[7] Robi Ludwig, The Collaborative Divorce: A Litigator Explains, Huff Post (Nov. 4, 2017), https://www.huffpost.com/entry/the-collaborative-divorce-a-litigator-explains_b_59fbb3d3e4b01ec0dede40eb.
[8] Id.
[10] Rachel Rebouché, A Case Against Collaboration, 76 Md. L. Rev. 547, 549 (2017).
[11] Geoff Williams, Why Collaborative Divorce Makes Financial Sense, U.S. News (Aug. 19, 2013, 10:15 AM), https://money.usnews.com/money/personal-finance/articles/2013/08/19/why-a-collaborative-divorce-makes-financial-sense.
[12] Luke Salava, Collaborative Divorce: The Unexpectedly Underwhelming Advance of a Promising Solution in Marriage Dissolution, 48 Fam. L.Q. 198 (2014).
[13] Robi Ludwig, The Collaborative Divorce: A Litigator Explains, Huff Post (Nov. 4, 2017), https://www.huffpost.com/entry/the-collaborative-divorce-a-litigator-explains_b_59fbb3d3e4b01ec0dede40eb.