FAQ: Does the Collaborative Divorce Process Ever Fail?

collaborative divorceFAQ: Does the collaborative divorce process ever fail?

Based on my experience, the answer is “Yes.” Human relationships and personalities are infinitely complex. That’s why there is more than one way to disentangle them at the end of a marriage. Even though the collaborative approach can result in a more civilized and flexible outcome, not every couple is a good candidate for collaborative divorce.

When would we recommend a litigated process?

A traditional courtroom process can be contentious, but there are situations when it is the best fit for the couple. Here are some early red flags that would prompt my team to recommend it.

  • If the couple is willing to engage in a litigation. This point is critical, as many of my collaborative divorce clients are deeply motivated by their desire to stay out of the courtroom and avoid getting dragged through the mud.
  • If there is a threat or a history of physical or emotional violence, especially with criminal charges pending. In these situations, husband and wife are unlikely to muster the degree of trust and cooperation that is required for sitting down and talking through the difficult points of property division and co-parenting.
  • If one of the spouses is acting in a way that is dishonest. From hiding assets to refusing to provide financial details of retirement and banking accounts to the professional team, there are dozens of ways people might attempt to stack the financial deck in their favor. Lying destroys trust, and without trust there can be no basis for a collaborative negotiation.

Occasionally, a couple may begin the divorce process by signing a Collaborative Law Participation Agreement (which defines their intentions to resolve their differences in a collaborative manner) but don’t have the commitment to follow through with it. Perhaps the husband agreed to the collaborative process just to appease his wife, or the wife decided to try the collaborative way knowing that if it did not work, there was always the option of going to court. Without a sincere commitment, spouses can get bogged down in the process and give up on it. That is a waste of everyone’s time and money.

What happens when a collaborative divorce process stalls?

In that situation, each spouse will have to find another attorney to represent them as they begin the traditional litigated process. Unfortunately, that means the couple must incur additional expense and face the reality of time lost in a process that did not produce the desired result.

How can you improve your odds of making the right decision when it comes to choosing collaborative divorce? My advice is to consult with specialists. It is sometimes difficult to see the situation clearly and objectively from the inside. I have had clients who missed obvious red flags, or worried unnecessarily about behaviors and signs that did not represent a real problem. Because an outsider can be more effective at pointing out or alleviating concerns, I recommend reaching out to your local collaborative divorce alliance. Collaborative law attorneys have seen dozens of cases and can guide you through the decision blueprint quickly.

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About Jana Foreman

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