It is difficult to determine whether collaborative law is the right choice for obtaining your divorce if you have never been a party in a contested lawsuit. Litigation has common threads regardless of whether the case is one involving divorce, breach of contract, products liability or medical malpractice. All litigated cases have scheduling orders that require certain things to be done within a specified period of time. These include but are not limited to, written discovery, depositions, designation of expert witnesses, amending pleadings, filing motions, exchanging exhibits and scheduling hearings.
Since the attorneys handling the case must comply with the Court’s scheduling order, they are in charge of the litigation and the parties are not. The attorneys’ job is to develop the case for trial so that all proof needed is admissible in Court and so that the client’s best case may be presented. This requires the attorney to subpoena documents and take depositions of the parties and witnesses. In addition to identifying all assets and debts of the parties in a divorce case, the attorneys will develop testimony under oath to blame the other party or destroy their credibility if it helps their client’s position at trial. It should be noted that all documents filed with the Court become a public record. The nature of this process creates tension and anxiety among the parties which usually spills over to the children.
In contrast, collaborative law is private and does not involve any court proceedings other than the filing of a basic petition and a brief, final hearing before a judge to sign the decree. There are no depositions, written discovery, hearings or filed motions. The blame game is not a part of the process and the exchange of relevant information is required but, the timeline for production is controlled by the parties. If experts are needed in the areas of finance, communication or formulating a parenting plan, they are jointly retained as neutral consultants for both parties. This process allows the parties to preserve some alliance with family and friends and to lay a foundation for an amicable future relationship with the former spouse and children.
With collaborative law, the parties and their attorneys work together to identify the goals, interests and concerns of each party. All relevant information is gathered so the parties can develop options to divide the marital estate and put a parenting plan in place. This allows the parties to retain control over the process and to make informed decisions along the way. With litigation, the parties lose the ability to control the process. They also lose the ability to control the final outcome if the case is tried to a judge or jury.
With litigation, the attorneys’ fees which are paid can be viewed as a true cost of doing business. With collaborative law, the attorneys’ fees should be viewed as an investment in future relationships and knowledge gained about the financial implications of the marital estate. For additional information regarding collaborative law, I recommend consultation with an attorney who has been specifically trained in the process.
By Frank G. Lyle
Springer and Lyle, LLP
This is one of the most well thought out explanations of collaborative law and its differences from litigation that I have ever read. I have been friends with Frank Lyle, the author of this blog, for about 40 years, and I continue to learn from him and appreciate and admire his wisdom. We are often asked to compare the cost of a collaborative divorce to a litigated (court) divorce; Frank beautifully explains that the cost of a litigated case as money spent which should be considered just a “cost of doing business. I would add that this also means is that there is no guarantee of any return for your investment in litigation: you may win–you may lose, but the only guarantee you have is that your relationship with your ex will be worse and your children will be worse off than if you were able to handle your divorce through the collaborative process. In contrast, the money spent on a collaborative divorce is money, as Frank said, which is an investment in your future, for which the return is a peaceful, secure future for you and your family.