To say that a collaborative divorce is less expensive than litigation or other traditional adversarial processes is generally true, but it is also a bit misleading. In truth, it is the complexity of the issues and the level of conflict in a matter that drive cost. However, the difference between the cost associated with adversarial processes and that of a collaborative process is the difference between blindly throwing money into a black hole versus investing in the future of the people whom you value.
Quite a bit of money is expended in litigation for attorneys to appear at hearings at which nothing ever seems to get accomplished. Your case is discussed outside of your presence while you wait on a bench for your attorney to report back. In contrast, you participate directly in a collaborative divorce process. Not only are you directly included in substantive discussions about the issues in your collaborative process, but you also have a say in meeting agendas and the pace of the process. Perhaps most importantly, the collaborative process empowers both spouses to make well-informed, deliberate decisions about the terms of agreement that will resolve their divorce.
In litigation, much money is routinely expended on formal discovery of information and documents. Attorneys bill for the preparation of formal discovery requests and then for reviewing the actual responses and documents, which can take countless hours. While gathering information is necessary, the cost of the formalities and the ensuing discovery fights can be staggering. In contrast, the disclosure, summarization, and analysis of information and documents in a collaborative process are efficiently coordinated and streamlined, often and preferably by a neutral financial specialist with access to both spouses. Two attorneys are not paid to sort through boxes of documents; rather, a meeting or two is held with all participants to present and answer questions about the financial data. If one spouse is not as familiar with financial information as the other, individual time can be spent educating that spouse to ensure there is not an unfair imbalance of power within the negotiation. These steps are investments in obtaining an informed, durable resolution that meets the needs of both spouses and their children to the highest degree possible.
Over and above discovery, even more money is expended in litigation on paperwork and preparation for a trial that will most likely never occur. From Complaints to Trial Briefs, the cost of preparation required before anyone even steps foot in the courtroom is massive. Further, there are hours of underlying work developing both offensive and defensive strategies for trial, all within a relative void of information about what the other side is preparing. All of this can seem quite unnecessary in retrospect when a settlement finally occurs, often on the day of trial. In contrast, the collaborative process focuses time and resources only on the goal of reaching an informed, durable resolution. Attorneys, coaches and financial specialists all need to be paid, but they are all using their expertise to help the spouses cross the resolution finish line.
Regardless of the divorce process utilized, divorce is often charged with an abundance of emotions. Anger, disappointment, guilt, shame, doubt and fear are all potentially left unaddressed and festering indefinitely when one is in litigation. On the other hand, the reality of the emotional component of divorce and its potential to delay and even derail resolution is recognized and addressed within the collaborative process. Coaches are put into place to keep both spouses moving forward, attorneys are trained to de-escalate conflict instead of create it, and referrals are made to other experts when necessary. While intervention to manage emotions can generate cost, this is money invested directly into the success and conclusion of the process, as well as into the preservation of future relationships and the ability to effectively co-parent for the children’s benefit.
Ultimately, it is the client who must choose either litigation or a collaborative process and then live with the results of what his or her professional fees expenditures have bought.