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December 9, 2016

The previous post discussed mediation and this post will continue with collaborative divorce.


Collaborative divorce offers an alternative between mediation and litigation. In a strict collaborative process, the divorcing couple executes a contract binding each other and his or her respective attorney to the non-adversarial process and disqualifying the attorney’s right to represent his or her client in any future litigation. The collaborative process generally follows the same track as the mediation process, with the exception that each spouse is represented by an attorney instead of having a mediator facilitate the process.

The major advantage of collaborative divorce compared to mediation is the fact that each spouse is represented by an attorney. First, this generally provides a person with added comfort since his or she will have an experienced advocate on his or her side, which means the spouses will not have to navigate through potentially complex issues alone. Second, representation should help level the proverbial playing field, since an experienced family law attorney should have the requite knowledge and skills to: (a) request production of the necessary information and documents and (b) analyze the information and documents on behalf of the client to properly advise the client as to reasonable settlement options related to legal custody, physical custody, alimony, child support, housing, division of bank, brokerage, and retirement accounts, and the division of personal property. Third, on the date of the divorce, each spouse will be represented by an attorney in court, instead of going through the uncontested divorce hearing unrepresented.

A disadvantage of collaborative divorce compared to mediation is that it could become more costly since the couple is paying for two individual attorneys instead of one mediator. However, in a mediation, the couple often hires individual counsel to review the settlement agreement created during the mediation. In that example, the spouses will incur the costs of a mediation plus two separate attorneys.

A major advantage of collaborative divorce compared to litigation is generally cost. As with mediation, if each spouse trusts one another, has comparable knowledge of the family finances, and wants to get divorced, then the process should conclude expeditiously. Since family law attorneys in Greenwich, Westport, Stamford, Darien, or New Canaan generally bill by the hour, the less time spent on a matter means less money spent on legal fees.

The major disadvantage of collaborative divorce compared to litigation is that collaborative forecloses the enforceability of the automatic orders and discovery compliance since the parties agreed to operate outside of the confines of the courtroom. Thus, if a spouse does not cooperate in turning over financial statements, or withdraws a large sum of funds from the family bank account, outside of the ordinary course of business, the other spouse is barred from filing a motion to with the court without ending the collaborative divorce process. This often becomes a difficult decision, especially if a spouse has built a strong relationship with his or her attorney, because filing a motion will require the attorneys to withdraw from the process and the spouses will have to hire new attorneys and often restart the case. Further, the enforceability of the collaborative divorce contact is an open question, and sometimes an attorney will refuse to withdraw from the process if the case enters the litigation arena. If that occurs, you will be faced with the decision to acquiesce and allow your spouse’s attorney to stay in the case, or litigate that issue, which will increase legal fees and shift the focus from settlement to issues unrelated to your family.

Broder Orland Murray & DeMattie LLC, in Westport and Greenwich, Connecticut, offers experienced guidance in all types of divorce processes. Our lawyers take the time to understand the issues important to you and will strive to create workable solutions for you that are fair and equitable under all of the circumstances.  More on Divorce

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