by Jaime L. Wallace, Esq., Family Law Attorney
If you are reading this article, I hope I can convince you that, if you must go through a divorce, you should elect to do a collaborative divorce. Why? First of all, in a “traditional” divorce proceeding, there are many procedural requirements and pleadings that are required to be filed by the court rules. Those requirements often end up causing substantial expense to the client and, by and large, do not serve any purpose other than progressing the case in the court system.
When I refer to “traditional” divorce in this article, I am simply using that term as a label for the litigation process through the court system attendant to a divorce.
The procedural requirements, and the fact that litigation almost always involves having hearings and rulings by a judge on different aspects of the case, is one of the primary reasons that a traditional divorce often takes so long to complete.
In our area in Sarasota and Manatee counties, the average divorce proceeding is at least a year. The court dockets are very congested, and it is not unusual to be ready to take a case to final trial but be unable to get an actual date from the judge to have the trial for several months.
Here is a common scenario in a traditional divorce:
- The divorce petition is filed.
- The opposing party after service of the petition on him/her by a process server, then must engage his/her counsel and file a response to the petition.
- The next phase is the discovery phase, which means the process of obtaining needed financial information from the opposition. This process most often encompasses at least four months, and in complex divorce cases it is not at all unusual for discovery alone to take up to a year.
- Once discovery is complete, then the parties must participate in mediation and attempt to settle the case before the judge assigned to the case will provide a trial date. Scheduling a mediation, due to having to coordinate several person’s schedules, often results in waiting another few months to get to the mediation.
- If the case is not resolved through the mediation process, then parties must wait for that trial date.
I recently had a case which was not resolved at mediation. We were unable to get a trial date in 2021. Yes, it can be a nightmare. The amount of time that one is embroiled in the divorce process can be taxing, both emotionally and financially, to say the least.
Participating in a collaborative divorce means that there are no formal pleadings filed during the process, with some minor exceptions. More importantly, the time period for completing a collaborative divorce, although it can vary dramatically, is easily less than half the time that a traditional divorce would take. It is not unusual for a collaborative divorce to be concluded in four or five months instead of the typical one year.
Besides these very practical advantages to a collaborative divorce, the real advantage of a collaborative divorce is the ability to conclude the marriage in a respectful and honorable manner.
The collaborative process does require parties to commit to being honest and transparent with each other, and to have a goal of working through the issues themselves as opposed to leaving decisions to be made by a judge. I like to say, “It’s the way to take the high road” rather than battle it out. That does not mean that a party simply rolls over to the requests of their spouse or just has to be “nice.” That is not at all what happens in a collaborative divorce. You still have the support and counsel of your chosen lawyer, and you still have the right to obtain all financial documents and discovery that is relevant to your case. The financial discovery though is completed in an informal manner.
The parties agree to a neutral financial expert and a person to act as facilitator of the group. Both those neutrals have received extensive training in the collaborative process.
The information is sorted out and reviewed by the agreed neutral forensic expert, and then discussed with each side and collectively with both sides. The parties, their respective counsel, the neutral financial expert, and the facilitator all work as a team to try and work out an agreement on all issues which is fair and reasonable.
When the team in a collaborative process meets to discuss the issues, we call those meetings “sessions.” A collaborative divorce typically involves three or four collaborative sessions, each about a month apart. Some collaborative cases have been resolved in one or two sessions, and some for various reasons require more sessions. In most collaborative cases where the parties have minor children, the parties work separately with the facilitator to try and reach a mutually acceptable Parenting Plan.
I have practiced exclusively in the area of family law for 32 years. I think the collaborative divorce process is far superior to traditional litigation.
I have tried to give you a brief understanding as to why you should consider the collaborative process. I hope if you are reading this and are considering a divorce, you will meet with a lawyer who has been trained in the collaborative process and have a thorough discussion with that professional about this alternative.