Collaborative Law as an Alternative to the Litigated Divorce Process

By: Leonard E. Gerber, CPA/ABV, CVA (Jul, 2011)

Divorce can be an emotionally and financially traumatic event. Many people believe that divorce can only be handled by the courts, and as such, gear up for a battle so that they can tell the judge what a lousy spouse they were married to.

However, many lawyers are now informing the divorcing parties that the judge does not consider marital fault in awarding either support or property unless the fault is considered egregious; i.e., "so bad that it shocks the conscious." In other words, there is no financial penalty to the spouse who is deemed a bad husband or wife. The parties should be informed that if they choose to go to court, the judge will not consider the allegedly bad acts of either spouse. The judge's job is divide marital property equitably (not necessarily equally), and determine both spousal and child support.

The traditional approach to divorce can be very expensive and destructive to the family unit. There are court filing fees in addition to usually larger legal fees to handle discovery, motions, conduct depositions, and finally a trial. It is my experience that most litigated divorce cases eventually settle. The reasons for the settlement vary but most settle at court before the trial begins or sometime during the trial but before its conclusion.

There is an alternative to the litigated process, Collaborative Law. I am a member of CNY Collaborative Law Professionals (www.cnycollaborativepractice.com). In the Collaborative process, the parties and their attorneys agree in advance that while they are in the Collaborative process, they will not use or threaten litigation. An agreement is signed to this effect. The agreement states that if the Collaborative process does not work, then none of the attorneys or other allied professionals can participate in the litigated matter. Therefore, there is an incentive to all the participants to keep the matter in the Collaborative process.

I have been involved in several Collaborative cases and have been asked to prepare business valuations, perform tax planning, and financial planning after the divorce. The best meetings include not only the parties and their attorneys, but also allied professionals, such as a financial expert and a facilitator (who is always a mental health professional). The job of the facilitator is to ensure that all parties are heard and any affects of the emotional situation is controlled.

According to the CNY Collaborative Law website, the core elements of the Collaborative Practice are as follows:

  1. Negotiation of mutually acceptable settlement without allowing courts to decide any issues for the clients.
  2. Use of trained professionals who must withdraw from representation of either spouse chooses to litigate.
  3. Commitment to open communications and voluntary, thorough, and genuine disclosure of financial and parenting information.
  4. Creation of bilateral solutions that take into account the highest priorities of both spouses, accomplished privately and with respect and dignity.

My experience is that the Collaborative Process works. The professionals who are members of the CNY Collaborative Law Professionals undergo continuing training. That, coupled with their experience and trust for their fellow members allow for a process that removes the adversarial atmosphere that exists in litigated matters.

My advice to parties that are considering the use of the legal system is that the legal system will not provide the revenge and punishment that they may feel the other spouse deserves. However, the legal system does provide an arena for those matters on which the parties are so polarized that there is no realistic way to collaborate. Parties should recognize up front that the litigation route is very expensive and can take up to two years to complete, since the courts system is overloaded with cases. Also, the parties are putting the issues squarely in front of a judge with very limited input from the parties.

 

The information reflected in this article was current at the time of publication. This information will not be modified or updated for any subsequent tax law changes, if any.

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