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Collaborative Divorce v. Litigation: Which Is Right for You?


Divorce can be dramatic, ugly, and adversarial. Not everyone is prepared for or wants to go through a litigious split’s financial and emotional cost.  While litigation is necessary in certain circumstances, it certainly doesn’t have to be the default. For many, resolving cases outside of Court can have incredible benefits, especially if children are involved. Being able to walk away from marriage while maintaining an intact co-parenting relationship is not only good for parents but also for children who are able to see that their parents can get along. Resolving matters outside the traditional litigation route can minimize collateral damage and can result in spouses being able to put the negative feelings surrounding divorce more quickly behind them. If both spouses feel that litigation should be a last resort, a Collaborative Divorce may be a good option.

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What is Collaborative Divorce?

The Collaborative Divorce process is a method for resolving divorce outside of the court system, except for mandatory court filings. Each spouse has their own attorney to guide them through the process and help with negotiations. This process begins by everyone signing a “Participation Agreement” setting forth the rules, including a provision that if an agreement cannot be reached through the collaborative process, neither attorney can represent either spouse in a court setting.  Because of this, if you decide to proceed with a Collaborative Divorce and can’t resolve your issues, neither of you will be able to continue with your attorney during a court action, regardless of why an agreement couldn’t be reached. 

Once both spouses commit to the collaborative process and sign the agreement, the work begins.  Each spouse meets with their attorney to discuss their goals and concerns.  This session is crucial because it gives the attorney an opportunity to flesh out your motivations, which guides the negotiations. Not everyone has the same needs during the divorce process and knowing what a spouse finds important can help the attorneys craft creative solutions specific to your family.  From there, you begin to participate in four-way collaborative sessions between the attorneys and their spouses.  During these confidential sessions, additional professionals such as accountants, financial advisors, parenting coaches, and therapists may be brought in to help move the process along. Ultimately, the goal is to work with one another as opposed to against each other to achieve a resolution. 

Collaborative Divorce Attorneys in North & South Carolina

There are several benefits to the Collaborative Divorce process, the main one being a preserved ongoing relationship between spouses. In addition, the process tends to be more cost-effective since both sides use the same professionals. It’s also not unusual for the collaborative process to be more efficient than the traditional litigation route, which can have countless delays due to the court system being overwhelmed. Also, being able to reach a resolution on your own removes the uncertainty that comes with putting your issues in front of a judge and allows you to craft a unique settlement that will work for your family. 

While Collaborative Divorce has its advantages, it’s not for everyone. Importantly, both spouses must agree to work toward a collaborative result.  Given that divorce lends itself to being a highly emotional process, that can be an impossible ask even in the most amicable of situations.  Additionally, if the collaborative process is unsuccessful, everyone starts over with new counsel, which is costly and time-consuming.  Because of this, it’s very important to decide whether a Collaborative Divorce will work with your unique dynamic before deciding to proceed through that process.

Can Non-Collaborative Divorce Cases Resolve Outside of Court?

If Collaborative Divorce is not a realistic option and you must proceed through the court system, you can still resolve your marital differences with minimal court intervention through alternative dispute resolution (“ADR”). ADR encompasses any method of dispute resolution that can help parties reach an agreement outside of court, such as mediation. In all family law matters in North and South Carolina, mediation is mandatory prior to a case being set for a final trial. Because of this, even if a case begins in a very litigious way, it’s still possible to resolve matters amicably.

Mediation occurs on a day when both spouses get together with their attorneys and a neutral, third-party mediator. It’s not unusual for attorneys to use mediators who are local family law attorneys and/or former judges. The mediator is not there to take sides, make decisions, offer legal advice, or force a settlement. Instead, their goal is to help craft a settlement, often coming up with creative and unique solutions that would otherwise be unavailable in a court setting. Just like the collaborative process, reaching an agreement is solely based on whether both parties are willing to compromise for the sake of resolving their marital disputes. If both spouses can accept a resolution they can live with, they typically are able to settle with an agreement that is better for their family dynamic than what they could achieve in court. In the event an agreement is reached in mediation, the case is mostly over except for necessary final court filings.  If, however, no agreement is reached, the case can then proceed to trial. 

There are times when it’s not possible to reach an agreement outside of court, and you have no choice but to allow a judge to make decisions for your family. While necessary, proceeding down this path can be lengthy, expensive, and rarely satisfying. Despite this, if reaching an amicable resolution is not possible, there is always the option of litigation.

Deciding which path to take during your divorce is a personal one and can shift during the process. It’s possible for your divorce to begin aggressively in court in front of a judge and then transition to a more amicable setting. It’s also possible to start the process thinking you’ll be able to work together, and quickly realize that’s not realistic. Regardless of how you start the process, know that you have options to cross that ultimate finish line.  

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