Anyone who has experienced a messy divorce knows that battling divorce in court is emotionally devastating. Going on trial for divorce can be financially draining, and there are many cases on record where couples have litigated for years until their estates are totally drained, and when all their funds were depleted, they decided to settle out of court. You do not have to go through this unpleasant process; San Diego Family Law Attorney can help you achieve a peaceful divorce settlement.
What is Collaborative Law?
Collaborative law provides an out of court avenue for dissolving a marriage. In this divorce process appearing in front of a judge is not necessary. Instead, there is a written agreement between you and your spouse with professionals who may include therapists, attorneys, financial experts and child custody specialists, to settle the divorce.
What is the difference between a regular divorce and the collaborative process?
The purpose of undertaking a collaborative divorce process is to mutually find solutions to your marital disputes. This process is amicable, there is no fighting against your partner to gain an advantage, and although no one expects you to concur with everything, your main aim should not be to gain an advantage over your partner. The process helps determine who gets what property, child custody, amount to be given for spousal support among other issues.
At the commencement of the process the spouses or partners must sign a contract agreeing to resolve all issues outside court. None of the parties is obligated to testify, take depositions or respond as they have settled the matter out of court. However, for this process to function both parties must be reasonable, respectful and fair towards each other.
You are also expected to honestly and freely furnish your spouse, attorneys and other experts involved with records and information that is pertinent to the divorce or separation. It is necessary to disclose your financial debts and assets even the private ones that you did not disclose during the marriage. If you feel that your spouse won’t be open in the process, then regular divorce in court is the best route where they will be ordered to disclose information and produce documents through the legal process of discovery.
Like in a regular divorce experts like appraisers and accountants may be required in a collaborative process. However, information that these experts share in the divorce collaborative process is neutral and can’t be used afterwards in a court of law if the negotiations fail.
In a regular divorce, the approach is different as compared to that of a collaborative process. In a collaborative divorce, your lawyers will educate you not only on matters law but also advice you on how you can reach a common ground. Our lawyers are well trained in collaborative law, and if you and your spouse or partner can’t come to an agreement they have no option but to withdraw their services.
In case your lawyers are forced to withdraw when the collaborative process fails; they will be more motivated to look for solutions for the process that will keep your divorce settlement from court. This ensures that both of you have control over decisions that will impact your lives rather than having the court decide for you.
Is there a difference between collaborative law and mediation?
In a mediated divorce, the resolution is achieved with the assistance of a mediator. The role of the mediator is to interpret the law to you and redefining your perspective helping you and your spouse to communicate better. The mediator won’t give you legal advice like our lawyer in the collaborative process can. However, like in collaborative law, the mediator won’t make decisions like a judge in divorce court.
Unlike in the collaborative process, it is not a must you settle everything through mediation. If you cannot agree on everything, mediation will help you resolve some issues. Mediation means the court does not make decisions for you and your spouse on everything. Therefore, divorce proceedings are shortened.
Is a collaborative process better than regular divorce?
If you and your spouse want to play a major role in your separation or divorce, a collaborative process is what you need. It takes a shorter duration, a less costly process, and not as draining because court proceedings and appearances are not a requirement. It is also a great option in the event that you want to avoid publicity, and protect your children. However, this is not the best option if your marriage has been riddled with domestic violence. Spouses or partners are expected to cooperate through this process.
What are the factors that favor collaboration?
The need to have separate legal representation; if you need an attorney to look out for your interests through the entire process, then collaborative divorce is good for you. For instance, your case may involve complicated legal and/or financial issues that you need someone competent to negotiate for you. You may also feel comfortable if you have an attorney to consult with through the entire process. In a collaborative divorce process, there are two attorneys representing either spouse or partner. This ensures all parties are well represented.
Power Imbalance in your Marriage or Partnership
If there has been domestic violence in your relationship or other dynamics that have left you at a disadvantage, the structure, and support you get in a collaborative divorce may be quite beneficial to you. Having an attorney every step of the way may give you more confidence in expressing your wishes and concerns even with the disapproval of your spouse. This also ensures that one spouse doesn’t dominate the negotiations.
Are there downsides of the collaborative process?
One of the major downsides of a collaborative divorce is that if the process fails, your attorney and the other professionals involved have to withdraw therefore you have to start all over again with a new team. This means more expenses and time wasted, and this is the reason why some attorneys are reluctant to engage in collaborative divorce.
Some attorneys are also not in favor of collaborative divorce because it blurs their role as an attorney as they look for solutions and compromises acceptable to the other party while at the same time representing the client’s interests.
Another downside of the collaborative process is that because lawyers are more inclined to negotiation than mediation, you are less likely to have creative solutions that are outside what the law would normally prescribe. Though, one of the major advantages of a non-adversarial process is that the law is just but a guide and not prescriptive and you are free to decide on what will work for you. However, the fact that lawyers are involved in the process there is little likelihood of unique solutions.
Like a failed mediation an unsuccessful collaboration process may cause the case to become very adversarial, and there is the likelihood that the parties will give up on reaching a reasonable settlement. It is therefore critical that the parties involved develop the best exit plan.
What happens during the collaborative process?
The Initial Meeting
Your attorney in the collaborative process will typically use the first meeting to describe the collaborative divorce process and introduce other collaborative divorce team members. In this meeting, you will review tools and the entire process. All the principles and guidelines are signed by all parties which are intended to ensure success of the process and that all the participants understand and are dedicated to this process.
Our collaborative lawyer will furnish you with a questionnaire and other documents that will assist in gathering information that is pertinent to the collaborative divorce. In subsequent meetings, it will be determined which additional information or documents that will need to be gathered and who will be responsible for what.
Both spouses and partners may also decide to engage other professionals. This may include a coach, financial consultant, a child specialist and any other professionals whose services may be required in the collaborative process.
The spouses or partners are required to give each other their preliminary declaration of disclosure. One of the legal requirements is that each spouse must share with the other spouse his or her knowledge of the marital debts and assets, separate assets, and debts, liabilities and income. There are some specific documents that are used to put forth this information. There must also be a final declaration of disclosure that must be exchanged if both parties don’t relinquish the exchange of these documents before the signing of the final agreement.
You will often need some immediate arrangements for parenting as well as asset management, and the managements of debts and finances. During the collaborative process, both informal and formal agreements can be reached. For the court to issue a temporary order, these agreements can either be written or stipulated.
The Service of the Petition and Filing
The first step to legal dissolution of a marriage in court is the petition. There is no particular legal requirement as to when a petition should be filed during a collaborative process. However, it should be filed for a judgment of annulment of marriage to be given. Six months is the only time span that may be applicable in this case whereby there should be a minimal of six months from the reception of the petition to when you are restored to a single status.
The petition lays down the details regarding aspects such as property, child custody, and support. Once you file the petition, you and your spouse or partner are given a file and case number in the court then a petition should be served to that respondent who did not file it. Within thirty days of the service date of the petition, a response must be served and filed. Just like the petition, the response lays down the respondent’s information regarding all issues.
The Needs, Interests, and Values of the Parties
To increase the probability of reaching a mutually acceptable agreement the clients, attorneys and other professionals involved in the process explore the needs, interests, and values of each party. Both spouses and partners are asked to express their interests, needs, and values. Coaches assist them in determining these.
Brainstorming and Negotiating a Settlement
Once all pertinent information has been gathered, and spouses have expressed their needs, interests, and values the spouses and collaborative attorneys should brainstorm possibilities of settlement. During brainstorming, financial specialists will give their projections on different options. An unbiased discussion then ensues to determine the best option that caters for the interests of all parties.
The Judgment, Memorializing Your Agreement and Obtaining Permanent Orders
After an agreement has been reached your collaborative lawyers will prepare a Settlement Agreement and if need be other settlement documents that should be reviewed. In this period you are also required to prepare your final declaration of disclosure unless both of you agree to waive its exchange. When everyone agrees to the language of the agreement, it is signed as well as all other necessary forms and submitted to the court.
On some occasions, there is separation of the judgment into parts. There may be one judgment that terminates one’s marital status, which is commonly known as bifurcation. The other judgment will address the other key issues which include parenting, division of property and support.
What are the benefits of a collaborative process?
- A civilized, respectful dissolution of your union.
- Maintains a respectful relationship with your partner.
- Resolves your problems mutually and not apportion blame or become vengeful to the other party.
- Protects your children from the conflict of divorce.
- Protects your mutual friendships and extended family relationships.
- Maintains the privacy of your marriage.
- Prevents the court from making decisions about your future and that of your children.
- Provides a creative and individual solution to your problem.
- Understanding that the collaborative process will address the needs, interests, and values of you and your spouse. This is, therefore, a win-win situation.
If you and your spouse want out of marriage, it makes no sense to spend an enormous amount of resources fighting in court. San Diego Family Law is committed to peaceful and cooperative solutions. Our team consists of highly qualified collaborative law attorneys. We are committed to the personal and financial goals of our clients. Good divorce agreements emanate from both parties committing to a mutual solution. We at San Diego family law are committed to helping you find this solution. For a consultation you can always reach us at 619-610-7425