Five Ways the Collaborative Process Gives You Greater Control Over Your Divorce Than Traditional Litigation

By Marie Sarantakis, Esq.

Couples going through a divorce are often dealing with a great deal of stress. They are navigating several life changes all at once and often do not understand the legal options available to them. Many spouses think that once they’ve decided that they are going to separate, there is only one way to do it, and that is to go to Court and engage in oppositional litigation. However, there is an alternative.

Even though parties may have diverging interests, there is a benefit to unilaterally working together to cooperatively craft a solution. Many divorcing couples participate in the Collaborative divorce process where they choose to negotiate their settlement out of court in an amicable and open fashion. At minimum, each spouse retains a specially trained Collaborative law attorney, many also engage the assistance of a financial expert and/or parenting coach. These professionals help the parties move forward in a way that is mutually beneficial for the family as a whole and then prepare the final documents which are ultimately entered by the Court. Here are some ways in which a Collaborative divorce can be superior to antagonistic litigation by allowing couples to retain greater control of the overall process:

1. You Control the Timetable. Many divorces are long and drawn out spanning the course of several months or even years. One of the reasons for this is that the traditional discovery process, in which parties uncover financial information, can take a very long time absent both parties’ cooperation. This is especially true if one party is forced to hold depositions, issue subpoenas, or bring the other to Court to compel their compliance. In the Collaborative process, both parties work together openly and voluntarily to provide each other with all relevant documents requested by the attorneys and experts. Another factor that can substantially delay matters is frequently enlisting the Court’s intervention to resolve disputes – especially minor or temporary ones. To do so, a spouse files a pleading, which lays out their argument in writing. Then they schedule the issue for oral presentment before the Judge. Once that occurs the other side is given time to respond, and finally after all of this concludes, the Court will schedule the matter for argument and an ultimate decision. It can take several weeks for the issue to work its way through the system and be decided by the Judge. By being transparent and working alongside Collaborative experts, you can significantly reduce the time it takes to get divorced.

2. You Control the Cost. Traditional litigation can be very expensive. Sadly, many litigants spend so much time and energy fighting over their finances, that they deplete the entire marital estate in the process. By not going to Court and hiring one joint expert, rather than two opposing ones, parties can conserve their resources. By trying to resolve their differences amongst themselves, with the assistance of the professionals who have intimate knowledge of their case, they can avoid their attorneys having to spend time drafting pleadings, researching arguments, and attending court appearances. You can use the money that would have been paid to the lawyers to rebuild your life moving forward.

3. You Control the Ultimate Outcome. While you may have to make some compromises, by engaging in the Collaborative process, with the assistance of experts and your lawyer, you can craft a creative solution that is tailored to your family’s unique needs. In contrast, litigation can lead to all-or-nothing results for one party. While Judges try their best to reach the most informed, fair, and proper decision under the law, the reality is that a legally proper decision may not be the one that is best for your family. Plus, crowded dockets mean that Judges usually have very little time to hear what you and your spouse have to say, and must make a final and permanent decision without the luxury of getting to know you or your family’s particular situation and needs. By actively working together to craft a solution, you will not be stuck complying with a surprise outcome.

4. You Control the Emotion. Traditional litigation can be downright hostile. The parties are opponents and the attorneys are their warriors often vehemently sparring on behalf of their clients’ respective positions. Attorneys zealously representing their client’s interest, can negatively impact the case as a whole, by pushing the parties further apart. Collaboratively trained attorneys know that even though you and your spouse may have opposite goals, instigating emotion is detrimental for everyone involved. It is important that both spouse’s listen to one another’s positions and communicate in a rational manner.

5. You Control the Privacy. Every time you ask the Court for some type of relief, you must file a pleading. In the pleading you lie out your entire legal argument, often smearing the other party and putting your family’s dirty laundry in the public record for the world to see. By negotiating your settlement before entering a courtroom, you can keep these intimate details private and only enter the final Judgment approving you and your spouse’s ultimate settlement.

While there are many benefits to collaborative divorce, it may not be suitable for everyone. It takes two people who are receptive and able to work together for a better end. If your spouse is an obstructionist and unwilling to compromise in good faith, this process will never work. Moreover, if there are power imbalances, such as emotional abuse or mental health issues, it may not be possible to bring people to the table with equal bargaining power. Nevertheless, countless couples could benefit by saving financial and emotional resources by engaging in the Collaborative process.

Marie Sarantakis

Principal Attorney

Sarantakis Law Group Ltd.