What’s the difference between collaborative and litigated divorce?
The main difference between collaborative and litigated divorce is that in a collaborative divorce, the parties and their lawyers commit to reaching a comprehensive marital settlement agreement without seeking intervention by the Court. The parties and their lawyers meet privately, according to a schedule that works for the parties. They might employ other team members, such as a mental health expert in the role of a divorce coach or child specialist, a financial specialist such as a certified financial planner to help address financial issues, or a forensic accountant in the event there is a business to value or cash flow to determine. These other team members are also trained collaboratively and work within the confines of the confidential collaborative process. Information is exchanged voluntarily between the parties, rather than via formal discovery. Each meeting is scheduled with a defined purpose to be achieved.
By contrast in litigation, the parties present their family’s disputes to be decided by the court. Oftentimes, parties must apply to the court to have the judge set temporary parenting schedules and temporary support to be followed while the case is pending. Formal discovery is conducted by way of interrogatories, notices to produce documents and depositions, all in accord with time frames set by the court. Often, each party retains his or her own experts, which could involve a forensic accountant to trace assets or value a party’s interest in a business, and/or to involve forensic psychologists to determine the best interests of the child in disputed custody cases. The timing of the process is dictated by the courts. The parties and counsel are required to make numerous court appearances to attend case management conferences, early settlement panels, and intensive settlement conferences over the course of many months, if not years, prior to proceeding to trial. In contrast, very often in a collaborative case, a resolution is reached within a few months. In a collaborative divorce, couples achieve a resolution that they decide is best for their family, the terms of which they have worked together to craft with the help of the professionals they retain. Parties who make these decisions for themselves are better able to move forward in their post-divorce life and to co-parent their children and adjust to their new, separate lives with the assistance of their “team members,” if necessary. In litigation, there is far more collateral damage to the family relationships and finances because each side is trying to “win” his or her case, at the expense of the other party and often by criticizing and disparaging the other party. The resulting scars impact the parties and their children for years post-divorce.
Amy Zylman Shimalla is a Certified Matrimonial Law Attorney in Warren, New Jersey and a partner with the law firm of Shimalla, Wechsler, Lepp & D’Onofrio, LLP.