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Archive for Sunday, July 16, 2000

Collaborative divorce’ gains favor with splitting couples

Flying Solo

July 16, 2000

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Q: My wife and I have been "tolerating" each other in the same house for more than 25 years. Although we knew the marriage was on the rocks after our third child, we decided to wait until all the children were educated and out of the house. That day has come and gone, but we still occupy separate bedrooms, and although we talk of divorce, the more we read and hear, the less inclined we are to give a bunch of blood-thirsty lawyers a shot at making us more miserable and less financially stable. We have gone to a financial planner and mediator on our own, without success. I am 54 and she is 52. We each have quite a few good years left, and although we don't necessarily want to spend them together, that is better than the alternatives. Are we missing something?

A: As the "divorce business" has become more complicated and lucrative over the past 30 years, more lawyers specialize in uncoupling unhappy couples. As the courts became more crowded, other forms of dispute resolution such as arbitration and mediation received a lot of attention as ways in which parties could resolve their differences for less money and with less acrimony. In some instances, mediators dissuaded couples from seeking legal advice despite the intricacies of untying the knot and the need for each to be represented by an advocate. Some mediated agreements wind up in litigation because the parties didn't understand their obligations or rights.

Enter "collaborative law," a method of dispute resolution that is quietly drawing more and more lawyers into the fold.

Here's basically how the collaborative process works: Each spouse hires a lawyer, and all four agree in writing that during the process, neither party will go to court. If a settlement cannot be negotiated, the lawyers for both spouses will withdraw, and each spouse will be required to hire a new lawyer to litigate the case. According to those who participate in this process, because the adversarial nature of the conflict is defused, both the parties and their lawyers are more motivated to cooperate and move toward settlement of the case. Since both spouses are represented by lawyers, there is less chance that the less dominant party will be affected by an imbalance of power that may occur in the mediation process.

As part of this process, there is full disclosure without prolonged court struggles to get the information, thus reducing the cost. After valuation of assets and consideration of the tax consequences, the parties and their lawyers prepare an agreement they can live with instead of taking the chance that the court will issue an order with which neither will be happy. If an agreement is reached and it is later determined that a party has withheld information or hidden assets, the agreement will be invalidated.

If the parties can't reach an agreement, they can hire a mediator for assistance. And when an expert is necessary to value property or help with child-related issues, one expert may be chosen with an equal division of the cost between the spouses. Since the inability to reach an agreement means that both parties must "start over" with new lawyers and more expense, those who have used this process say that there is as very strong incentive to keep negotiating rather than going to court. And those familiar with the process say that the cost of collaborative divorce will be far less than half the cost of a litigated divorce, and that parties are much more satisfied than those who engage in litigation.

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