After assisting with many divorce cases, I find that the cost of divorce and the amount of pain involved is related to the amount of involvement of the courts. Involving the courts means using the constant threat of a trial (exposing personal matters in public at great expense) to justify the use of a myriad of legal tools, such as protective orders, temporary orders, discovery, interrogatories, depositions, subpoenas, sanctions, and more. Even if you can afford the bill, why would a couple wish to create an atmosphere of animosity and hatred, when another method is available?
Collaborative Divorce removes the threat of court. The case is taken off the docket of the court, while parties and their respective attorneys resolve the case in four-way meetings. The attorneys and parties must sign a collaborative agreement in which they agree to honest exchange of information, respectful communication during joint meetings, use of joint experts (divorce financial analyst, communication coach, appraisers, or others), and not to take the case to court. If the case fails, the two attorneys and any experts must resign and cannot participate in litigation. This rule gives the attorneys the incentive to seek resolution.
Taking away the threat of trial allows the two attorneys to remove their litigator hats, forgo most of the tools of their trade, and encourage the parties to reach a settlement. Each party still has his or her own attorney to provide legal support and private meetings. But the negotiations take place at a table with both parties and the attorneys. These meetings can be scheduled for the party's needs, rather than a court docket dictating the timing of appearances. There is normally an agenda for each meeting, shared in advance, that outlines the topics of discussion.
For affluent couples, the use of a Certified Divorce Financial Analyst is usually recommended. He or she will attend the meetings as a neutral, assist the parties in gathering their financial information, create financial tables, and educate the parties in financial issues of divorce. Additionally, the CDFA will meet with each party individually to establish goals and interests, as well as long-term financial needs.
If tensions are extremely high or if there is an imbalance of power between spouses, the inclusion of a mental-health professional in meetings is also recommended. She or he acts not as a therapist but as a communication coach, helping parties to stay on track toward reaching a settlement.
Collaborative Divorce is ideal for the affluent couple, since they can afford the "experts" and attorneys, giving themselves the greatest chance to achieve a peaceful settlement without the public humiliation and pain of litigation.
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