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Collaborative Family Law
“Litigation” derives from the Latin word for “dispute”, and in modern terms refers to the process of bringing a dispute to the court system through a lawsuit. Litigation assumes a winner and a loser – in fact, one legal dictionary defines litigation as “a contest authorized by law.” Lawsuits proceed under stringent rules and deadlines, and lawyers may make dozens of court appearances to argue over pleadings, motions, discovery and scheduling. Even the most routine matters frequently take weeks or months to accomplish as lawyers vie with hundreds of other litigants for time on a judge’s crowded calendar. Clients often have little or no voice or involvement in their own case until a deposition or trial. Lawsuits are inherently combative, time consuming and expensive. Worst of all, the outcome of litigation is ultimately decided by a judge or jury – neither of which have any real interest in the parties or the subject matter of their dispute.
Collaborative Family Law is an alternative to litigation in divorce cases. The key to Collaborative Family Law is a mutual promise that there will be no litigation: instead, the parties each work with a Collaborative Family Law attorney by their side to negotiate their own agreement that works best for their family. Divorcing couples and their attorneys enter into a written contract to use the cooperative techniques of collaboration – rather than litigation – to identify and resolve such issues as custody, visitation, child support, maintenance and equitable division of assets and debts. The parties promise to make full, voluntary disclosure of all facts and financial matters relevant to resolving these issues. Most importantly, the parties commit to approaching the entire process with the best interests of their children as their primary goal.
Collaborative Family Law can work in almost every divorce case, even the most acrimonious. The costs of a litigated divorce – when measured in lost relationships, lost productivity and attorneys fees – far too often outweigh the gains. Collaborative Family Law offers client and attorneys a way out of the combative, often warlike litigation model. Collaborative family law engages the attorneys and their clients in a process that frees them to work toward resolving conflict using cooperative strategies rather than adversarial techniques and litigation.
The benefits of Collaborative Family Law can be significant:
- Collaboration leaves control and decision making in the hands of the parties. Divorce judges handle hundreds of cases at a time. There is typically very little opportunity for a judge to observe and appreciate the relationships and circumstances that are unique to you, your spouse and your children. Therefore, while judges are knowledgeable in the law, they are simply not in a position to custom tailor their application of the law to the best interests of your family. Unfortunately, even the correct application of law does not always provide good or appropriate answers. Collaborative Family Law leaves the power – and the responsibility – to make decisions affecting your family, in your hands. Rather than being bound by the academic rulings of a stranger to your family, you and your spouse make the real-life determinations that will guide the future of your children and your finances.
- Collaboration is more economical than litigation. Of course, this does not translate to inexpensive – but what it does mean is dollar for dollar work. There are no hours (and attorney’s fees) wasted while your lawyer sits in a crowded courtroom waiting for your case to be called from a list of dozens of others, or learns that your spouse’s attorney is asking for a continuance. In collaborative practice your case is resolved in a series of meetings scheduled at specific times by agreement of the parties and lawyers. Yours is the only case being focused on during those meetings.
- Collaboration allows families to move forward with their lives more quickly and productively. By removing dependency on the calendar of an overcrowded court system, parties can move their issues toward resolution as swiftly as they are motivated. And, the collaborative techniques developed and utilized in negotiation meetings provide you and your spouse with the dispute-resolution tools you’ll need to make necessary and often difficult decisions in the future – while avoiding conflict and protecting your children’s best interests.
While litigation may be conducive to resolving disputes between corporations or government agencies, it is detrimental in most cases involving individuals – and particularly so in cases involving families going through divorce. The key word here is family: at the end of a divorce, you, your former spouse and your children are still a family. Though no longer married, you and your former spouse must continue to meet your children’s needs. If the divorce process is approached as a contest to be won or lost, it will absolutely be antagonistic, financially depleting and emotionally destructive. When the dust settles, your ability to get past the pain of the divorce and to create a future for your children will be at best strained – and at worst, lost.
Collaborative Family Law is an effective method to avoid the pitfalls of litigation, but it is not an easy fix. Collaboration takes commitment, trust, hard work and, above all, a mutual desire to avoid a potentially devastating experience by placing a priority on civility.