Adversarial versus Collaborative Divorce

Historically, the primary issues in divorce centered on division of property. Thus, traditional divorce processes in the United States developed out of the very adversarial, arm’s length procedures of general contract law. Because many of the issues to be decided in a divorce today, such as child custody, do not adapt themselves to the adversarial process, some have advocated for a different approach to divorce. One of the emerging options to traditional divorce is a collaborative law approach.

Collaborative Divorce Glossary

  • SummonsEvery civil lawsuit begins with the filing of a summons, a document informing the opposing party that a case has been filed, and that they must respond, or answer, the petition within a certain number of days or the court may find them in default and award the filing party what they requested in the way of relief.
  • PetitionA petition is the document that sets forth names of the parties to a dispute, the facts of the case, and what relief the petitioner, or plaintiff, seeks as a remedy.
  • Four-WayIn collaborative divorce cases, most negotiation and decision-making is done in a series of meetings called four-ways because they typically include two parties and their attorneys.
  • MediationMediation is a process where parties to a dispute meet with a neutral third party, known as a mediator, to see if a trained dispute facilitator can help them come to agreement on at least some of the issues in the dispute.
  • DiscoveryDiscovery is a formal process in civil cases in which parties inquire into the affairs of the other person, including finances and other relevant area. Discovery can involve the use of a series of written questions called interrogatories, and court-reported person-to-person inquiries called depositions.
  • StipulationA stipulation, or stip, is a signed agreement between the parties intended to be the basis of a court order. It can relate to all matters in the divorce, a final stipulation, or to discrete issues on a temporary basis.
  • Expert WitnessAn expert witness is a person with sufficient credentials to be considered an expert in court, hired by one or both parties to present their opinion on matters at issue in the case.
  • Child SpecialistA child specialist is a professional, often a mental health professional, who specializes in child-related issues.
  • Financial SpecialistA financial specialist is a professional who specializes in financial consulting.
  • Divorce CoachA divorce coach is a professional, often a mental health professional, who has specific training in mentoring clients through the emotional aspects of divorce so that they may concentrate on legal aspects.
  • Final documentIn divorce, the final document signed by the judge is called either a Judgment of Divorce or Dissolution or Divorce Decree. It documents all agreed-upon issues, and will be the document the parties must turn to for resolution of post-divorce disputes.
  • Guardian ad Litem (GAL)A guardian ad litem is a court appointed representative for a minor child.

Adversarial Divorce Timeline

  1. File petition and summons
  2. Serve petition
  3. Answer petition
  4. Temporary hearing
  5. Mediation/possible appt of GAL
  6. Discovery
  7. Custody evaluation
  8. Expert Witnesses
  9. Motions
  10. Pre trial conference
  11. Trial
  12. Judgment

Collaborative Divorce Timeline

  1. 1st four-way
  2. File joint petition
  3. Parties, attorneys gather info
  4. Parties meet with divorce coaches
  5. 2nd Four-way
  6. Parties meet with child specialist
  7. Parties and attorneys gather info and docs
  8. 3rd Four-way
  9. Parties meet with financial specialist
  10. 4th Four-way
  11. Attorneys draft tips into final doc
  12. Final four-way to go over and sign doc

The above, while done with a certain amount of tongue-in-cheek, does point out the major disparities between an adversarial divorce and a collaborative divorce. If one were to apply the actual amounts of time for each 1-12 process in each case and the dates for each event in each, one would see an even greater disparity between the two methods of negotiating divorce. For instance, in a traditional adversarial approach to divorce, the process labeled number “6. Discovery” can actually be a months-long process whereby one attorney drafts lengthy and numerous “interrogatories” for the opposing party to answer. That party has at least 30 days to answer. Then upon answering the interrogatories, that party’s attorney sends off his/her own set of even longer interrogatories to be answered in 30 days.

“Discovery” also entails the possibility of depositions, which require notice that complies with the state’s rules of civil procedure, usually at least 10 days, excluding weekends and holidays. Depositions also must be “recorded” by a certified court reporter.

In other words, “discovery” in an adversarial contest can add months, even years, to the divorce process.

The process entitled “5. Mediation/possible appt of GAL” often results in the parties having an appointment(s) of 1-3 hours in length with a trained mediator who attempts to help them resolve custody and visitation disputes. If the dispute remains unresolved, the court may appoint an attorney as the Guardian ad Litem (GAL) to represent the best interests of the children in the litigation. The GAL is generally paid at a court-determined rate, less than the normal hourly rate for attorneys but certainly high enough so that there will be an attorney willing to accept GAL appointments. GAL’s participate in all proceedings which have anything to do with the children. Thus, the cost, which is generally shared equally by the parties, can also add thousands of dollars to the cost of the divorce.

The GAL, or the court, or one of the parties may request a custody evaluation. The process entitled “7. Custody Evaluation” is another very time-consuming, not to mention cash-consuming process. Custody evaluations performed by specially trained mental health professionals who conduct testing, interviews, and observations of the parents and the children, are often the most valuable. This can involve numerous lengthy appointments and can add thousands of dollars to the final cost of the lawsuit.

These are just a few of the issues that can become so contentious in an adversarial divorce that the costs in time and money become astronomical. Proponents of collaborative divorce do not think the results of most adversarial divorces are worth the time, money, or the emotional stress.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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