Non-Collaborative: What’s Wrong with Collaborative Law in a Divorce?

Collaborative divorce - The Peck Law Firm

When getting a divorce, most people want to avoid going to court at all costs. As a result, many are attracted to the idea of a collaborative divorce.

What is a collaborative divorce?

In a collaborate divorce, each spouse hires his or her own attorney and agrees to go through the collaborative process. This process requires both attorneys to sign a participation or disqualification agreement, meaning that the issues in the divorce will be settled only through negotiation. Essentially, the attorneys will not represent the clients if the case goes to trial.

The collaborative process requires that both spouses and their attorneys negotiate in good faith and make honest and full disclosures.

When all goes well, a collaborative divorce encourages both parties to be committed to reasonably negotiating the issues of their divorce.

So what’s wrong with a collaborate divorce?

Like mediation, in which a neutral mediator works with both parties and their attorneys, a collaborative divorce encourages both spouses to come to an agreement on issues like property division, child custody, spousal support, and others.

But unlike traditional mediation, settlement is required. If settlement is not reached and the collaborative divorce process fails, both spouses must hire new attorneys, pay new attorneys’ fees, and bring the new attorneys up to date on the case.

A study in the Pepperdine Dispute Resolution Law Journal noted, “Collaborative law…can require a significant investment. This investment is no more, perhaps, than litigation costs, but if the negotiation is unsuccessful, this investment is lost and the litigation costs remain.”

All of the time, energy, emotional investment, and money spent on lawyers, coaches, therapists, and financial advisors involved in the collaborative process will be lost if the process fails.

Because of the serious financial commitment to the collaborative process, many clients feel pressured to see it through—leading to a higher risk of coerced settlement. Just the threat of litigation by one spouse can cause the other spouse to accept an unfair settlement. This is of particular concern to those who have fewer financial resources than their spouse. If the process fails, they may be unable to afford another attorney.

Most divorce cases settle without the need for the collaborative law process, as few people want to experience the financial and emotional costs of a trial. However, some spouses need to go to court to resolve the issues of their divorce, as the only alternative is an unfair settlement.

If you are considering a divorce in South Carolina, speak to an experienced divorce attorney in Mt. Pleasant about the best option for you. I welcome your call at 843-800-2928.