Before starting the divorce process, your attorney will educate you on several divorce options, including litigation, mediation, and Collaborative Divorce. Whether you are going through an amicable, high-conflict, or financially complex divorce, a Collaborative Divorce could be the right option for you. In this podcast, Warren divorce attorney Amy Shimalla discusses everything a couple needs to know about the collaborative divorce process – including which professionals are involved, what makes a couple ideal candidates, and the pros and cons.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Amy Shimalla, Certified Matrimonial Law Attorney
Practicing family law since 1986, Amy Shimalla is a partner at the family law firm of Shimalla, Wechsler, Lepp & D’Onofrio, LLP in Warren, New Jersey. She is a Certified Matrimonial Law Attorney, trained arbitrator, accredited mediator, and collaborative practitioner. Whether your case involves high-asset and complex financial issues, spousal or child support, custody, other divorce-related issues, Shimalla works to find collaborative solutions that will work for you and your family.
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Read the Transcript of this Podcast Below.
How does collaborative divorce work?
Collaborative divorce is a process in which the parties work with their attorneys to settle their case without involving the court. They work towards a resolution that works for both the parties and for their children, if they have children. 98% of divorce cases settle before trial, but often after parties spend tens of thousands of dollars in litigation. With collaborative, settlement is the focus right from the start.
Do you need to involve mental health professionals and financial professionals in collaborative, or is it just lawyers?
Well, every case involves the two parties and their two collaboratively-trained lawyers. The parties and their lawyers decide if other collaboratively-trained professionals such as a divorce coach, or a financial professional would be helpful to them in resolving their issues. Every family is different.
What if there is a business involved, can the collaborative model be used in that case?
If the parties own a business, we involve a collaboratively-trained forensic accountant to value the business. They don’t have to do a full-blown report as they would have to do for litigation, but rather they do worksheets which they present to the parties and counsel at a face-to-face meeting.
They do the same review but in a more transparent, concise manner. Many of the most well-known forensic accountants in New Jersey have taken the collaborative training. The real benefit to a business owner is that it’s private and confidential. I think it’s an ideal process for a business owner.
What happens if the collaborative process breaks down? Do the parties have to retain new lawyers if they decide to move from the collaborative process to litigation?
They do. A cornerstone of the collaborative process is the premise that if the parties drop out of the process, they must retain new lawyers. This is based on the fact that the lawyers and clients have a different relationship in the collaborative process. They are more open to communication. There’s a certain level of trust developed even with the other party’s lawyer.
Why don’t you tell us a bit about the pros and cons of the collaborative process?
I’d the say the one negative is what we have already talked about. It’s the process and that parties have to retain new counsel and also new experts to move forward. The pros are so many. It’s private. There’s no open public court file. The collaboratively trained lawyers are also trained mediators, so they bring creativity to the process. At the same time, each lawyer is there to advocate for his or her client. So, the parties have an advocate with them throughout the process. Information is exchanged voluntarily without formal discovery demands and the children are the focus, but not the middle of their parents’ divorce.
What makes a couple ideal candidates for a collaborative divorce?
The parties have to be willing to be honest and transparent with one another. And that’s really the only limitation. They don’t have to like each other. They don’t have to get along. It’s not all Kumbaya. It’s just a matter of being – if people are willing to be honest, then this is a good process for them.
If somebody is thinking about this process, how would they go about choosing the right collaborative lawyer for their unique situation?
As with any divorce, a party must be comfortable with the lawyer. It’s a very, very important relationship. So, a client should trust his or her attorney and the advice they provide. There should be a mutual respectful relationship. And in collaborative, particularly, you want to look for a lawyer who is collaboratively trained and who has experience in collaborative matters.
What about when it comes to a high-conflict people, is it possible to use the collaborative process rather than litigation?
It is possible because there’s a commitment to reach a resolution, and if need be, a mental health person is brought in as a divorce coach to help deal with the high emotional level that’s often present in divorce. So, in collaborative, we can actually have that mental health person, who is the divorce coach, working with the parties outside the meetings with lawyers, and they can also come to the meetings with lawyers to help contain the emotional level during those meetings to help reach a resolution.
Is there any advantage to using the collaborative process rather than litigation for high-net-worth divorce cases?
Yes, as in any case, collaborative provides a great advantage over litigation in that, every meeting is a productive meeting. The parties don’t go to court over and over again on numerous case management conferences, and intensive settlement conferences and promotions. Rather, they schedule conferences with agendas to deal with specific items.
And when needed, we bring in other professionals to help us reach a resolution rather than retaining two sets of experts, such as two accountants or two custody experts, for each party. The parties and counsel agree on neutral professionals who are going to come in as part of the team to help them resolve their issues in a very meaningful, structured way rather than going to court over and over and over again and wasting time as you’re sitting in court waiting for a judge’s attention.
How long does the collaborative divorce typically take, and does it usually require multiple sessions?
The collaborative divorce process can take as long as the parties need it to take. It normally does take more than one session. If the parties want to schedule every week, they can do that. If they want to take time off for a family event such as a child’s wedding or graduation, they can do that. The parties set the pace. So, settlement in collaborative cases may take as few as two sessions or it may take several sessions. It just depends on each case as each case is unique but what we aren’t doing is scheduling meetings and the structure isn’t set by the court schedule. It’s set by the party’s schedule.
Is the collaborative process more or is it less expensive than litigation?
A collaborative divorce is generally less expensive because each meeting is scheduled and agreed on. A great deal is accomplished at each meeting, whereas contesting one motion before the court can cause the parties in excess of $5,000 each, and very little is accomplished. So, overall, it’s going to be a much less expensive process.
What happens in the case where somebody may have already started in a litigated process, can they consider moving over to a collaborative process now?
Yes, this happens actually quite frequently. The parties can choose to drop out of litigation and proceed in a collaborative divorce process. They have to withdraw their complaints and they can do that without prejudice. It would then be refiled after they reach an agreement so that the divorce can be finalized with the judge in a divorce being filed with the court. There can’t be a divorce complaint pending before the court while they are in the collaborative process.
It seems that you are a very pro collaborative divorce. Is that a result of having litigated many, many divorces in the past and seeing that this is a much better alternative?
It is. I’ve been doing this for 30 years and I’ve seen what litigation can do to families, and I’ve seen what collaborative can do. The collaborative model is such a better model for families going through a divorce in the aftermath, and how they’re able to move forward in their lives is so much better after having gone through a collaborative divorce rather than through litigation.
Do you find with people that go through the collaborative process that you get less calls afterwards as opposed to litigation, which at times may seem like it never ends?
Yes, in litigation we often see people back in court again and again on motions to enforce or just questions that come up and they can’t resolve anything. In the collaborative process, they’ve learned how to collaborate with each other and make resolutions and very often they can keep doing that after the divorce. If they come up with a problem they may resort back to their divorce coach to work through an emotional issue, or they resort back and come back to their divorce lawyers or collaborative divorce lawyers to help work it out. And it’s done in, again, a much more effective, efficient manner. Because they’ve treated each other with respect they continue to treat each other more respectfully after the divorce.
What happens if there appears to be a power struggle, where one person is more dominant and controlling than the other person? Does it still work to use the collaborative process in that case?
It does. I mean that’s part of the job of the advocates in the process to even that playing field, and as necessary we bring in a divorce coach to help with that. So, whatever we need to do, we do in order to even that playing field. That occurs in almost every divorce where there’s one party who is stronger or one party who’s more motivated or one party who’s more interested in moving it forward. And just as in any case, the advocates in the process have to help the parties deal with those issues.