Collaborative Divorce: Separate Lawyers, Yes; Antagonistic Litigation, No
Save money and reduce emotional wear and tear
Making the decision to end a marriage sets off a string of consequential decisions, starting with the framework you’ll rely on to navigate the legal process of a divorce.
There are alternatives to the traditional model of straight-out litigation, in which you each hire your own lawyer, who then are predisposed to “fight” for your best interests.
Most litigated divorces are settled long before it is necessary to have a judge step in, but it’s important to understand the dynamic with litigation. The lawyer you hire is motivated to do right by you. That can mean pushing hard, or spending lots of billable time in back-and-forth discovery with your spouse and his/her lawyer.
Collaborative divorce option
Collaborative divorce is another option. You each have your own lawyer, but the dynamic is not competitive. As its name implies, the process is one in which all four of you work together to hash out an agreement.
The heart of the process is done in real time with the four of you sitting together (in person, virtually) to discuss matters. Right off the bat that reduces the usual back and forth in which clients only communicate with their lawyers, who then discuss among themselves and return to their respective clients with a report on progress or lack thereof.
A key element of most collaborative divorce proceedings is that the lawyers explicitly agree that if you can’t reach an agreement using this process, neither lawyer will be involved if you and your spouse start over with full-blown litigation.
The in-between route
Collaborative divorce might be the Goldilocks option for couples who don’t want the aggressive nature of litigation, but are not sure divorce mediation is the right approach either. With divorce mediation, you and your spouse hire one mediator. The mediator works for both of you, helping you navigate through issues to reach agreement.
Once a mediated settlement is agreed to, a lawyer (it may be the same mediator) will draft the legal divorce agreement and shepherd it through your state’s filing system.
If that approach doesn’t appeal to either of you, or if you sense it’s not the right method — say, if there is a significant power imbalance in the relationship — the collaborative divorce approach gives each of you your own legal representation, but without the more aggressive nature of litigation.
State laws about children
It’s important to understand that a state’s laws regarding childcare, child support and alimony provide the framework for all divorces. No matter which approach you take, at the end of the day your agreement must abide by state law. Sure, there is room for negotiation, but this is not some free-for-all. You can begin to get a sense of your state’s laws at Divorce.net’s website.
And you can arrange a consultation with a divorce lawyer to walk you through the ins and outs of the process in your state. (You don’t have to hire them to be your lawyer, just agree to an hourly fee to give you an Intro to Divorce in your state.)
Cost of collaborative divorce
In terms of cost, collaborative divorce will typically fall in the middle ground between mediation (less expensive) and traditional litigation (more expensive).
With mediation you’re hiring one professional to do most of the heavy lifting with you; lawyers might only come in at the end to help each of you review the agreement. Collaboration involves two lawyers, each charging you an hourly fee.
A survey by Martindale-Nolo found that the average national hourly rate is $270, though there is wide variation, depending on location. The Nolo book “Divorce Without Court” offers an illustrative example using a $350/hour lawyer fee. The all-in cost for both parties using a collaborative divorce was less than $24,000, compared to more than $90,000 for the same divorce conducted through litigation. Mediation would typically cost less than half the charge for collaborative.
The mediation option
If your motivation for collaborative divorce is because you have complicated financial issues to work out, and think you both need separate lawyers, you may find that mediation can work.
The reality is that when there are tricky financial matters to consider — valuing an interest in a business, computing the future value of pensions, etc. — a lawyer is likely going to turn to a financial pro, such as an accountant. If you’re both open to hiring one pro as an uninterested third party to do the number-crunching, you might not need to hire either a collaborative lawyer or a divorce litigator.
Hiring a divorce mediator along with using a financial pro to spreadsheet the financial issues may be sufficient. Your mediator will likely have leads. Or you can search the website of the Institute for Divorce Financial Analysts for someone who specializes in divorce valuation matters. Once you have an agreement in principle, you can hire a divorce lawyer on a “consulting” basis to review the terms before you proceed with finalizing the divorce by filing the agreement with your state court.