6 Disadvantages of Collaborative Divorce

What is Collaborative Divorce?

Collaborative divorce is a relatively new type of divorce proceeding in Missouri. With this method, each spouse must work with their own collaborative divorce attorney and a team of collaborative divorce professionals, including financial advisors, mental health professionals, and other relevant advisors. At the outset of a collaborative divorce, parties agree not to litigate, and they work together toward a mutually agreeable resolution to a divorce agreement. In a collaborative divorce, all meetings are conducted with both spouses and their respective attorneys present. Clients are also able to meet separately with their attorneys to discuss matters.

The important features of collaborative divorce are:

  1. Each spouse is represented by a collaborative attorney.
  2. Each spouse and attorney sign a “no court” agreement.
  3. Collaborative attorneys must withdraw from representation if the process fails, and the case goes to court.
  4. Each spouse and his/her attorney negotiate in “four-way” meetings.
  5. Attorneys typically recommend involving collaborative professionals.
  6. Collaborative divorce is an informal process.
  7. Collaborative divorce is a flexible process.
  8. Collaborative divorce can be more efficient than traditional divorce litigation.
  9. Collaborative divorce is more expensive than mediation but is less expensive than traditional divorce litigation.
Disadvantages of Collaborative Divorce
1. Regular Divorce Proceeding Can Be Civil

People are often disillusioned into thinking that a regular divorce will be less civil than a collaborative divorce. Even the name suggests that the process will be peaceful and filled with constructive ideas and working together. However, the truth of the matter is that if individuals want a peaceful, non-combative divorce, they can do so using the regular process. Parties will always be free to negotiate their own out-of-court agreements and file an uncontested divorce. There is no requirement to commit to the collaborative process, as everything available in the collaborative process is available in a standard divorce. You might receive more from a traditional divorce process. In a collaborative divorce, parties must work together to reach a fair outcome for both spouses. This could mean that one spouse might end up with a smaller share of the couple’s assets than they would have a legal right to receive if the divorce were decided by a court.

2. Spouses Must Be on Good Terms to Make a Collaborative Divorce Work

As implied by the name, collaborative divorce is premised on the idea that the spouses can collaborate on reaching a settlement agreement. Both spouses must agree to the collaborative divorce process, and if one refuses, then collaborative divorce is no longer an option. Remember, you are getting divorced for a reason. Just because a couple opts for a collaborative divorce does not guarantee a peaceful divorce process. Typically, couples get divorced because they have problems that they cannot work out between themselves. Adding a couple of lawyers, a few experts and a mediator might just add fuel to the fire. There may be issues with communication, personalities, values, and hurt feelings that can make the collaborative process useless. If your soon-to-be former spouse is a bully, having the court system can keep him or her in check. Couples who remain very angry, resentful, or distrusting of one another, even if they agree to a collaborative divorce, are unlikely to achieve a successful outcome. Couples are expected to work together to find a fair division of assets and custody-sharing agreement, and they must trust that their spouse makes a complete and honest disclosure of their assets and liabilities. Without this trust and goodwill towards one another, they may not be capable of working closely to reach a settlement.

3. Less Opportunity to Investigate the Truth

In the collaborative process, independent third parties, such as accountants or custody specialists, are often hired to assist with developing a plan. However, these parties can only work with the information they are provided. Because the collaborative process happens outside of court, there may be less opportunity to contest facts that are being presented or omitted. As such, one party may be able to hide assets or misrepresent the facts.

4. Tying Your Lawyer’s Hands

When a divorcing couple opts to use collaborative divorce, they each hire their own attorneys who agree not to file in court until a full agreement is reached on everything at issue in the divorce. You’re hiring an attorney who cannot advocate for you in court. As such, if the collaborative process does not work out, you will have to hire a new attorney who may need to start over from scratch.

5. Collaborating Can End Up Costing More

The process can be costly. Collaborative divorce often involves input from experts, such as financial experts, real estate appraisers, and child psychologists, all of whom the couple will need to pay for their time. The collaborative process generally culminates in a mediation session or two if the parties are having difficulty reaching an agreement on their own. Before the mediation occurs, experts will have been hired, attorney meetings will have been had, money will have been spent on attorney fees and those experts, and mediators usually demand payment before the mediation session even starts. Experts, mediators, and attorneys are not inexpensive. If the collaborative process does not work out, you can be out quite a bit of money and then must spend more money for a new attorney and potentially new experts.

6. If The Process Doesn’t Work, You Need to Start Over

In some cases, even motivated and well-intentioned couples can’t reach a settlement that both parties can agree to, and they’re forced to walk away. This can mean that many hours of hard work, as well as fees paid to the professionals involved, are lost entirely, and parties must hire new attorneys if they choose to move forward with a courtroom divorce. In other forms of divorce mediation, the parties can move forward with their attorneys in litigation if the mediation fails to produce an agreement. But collaborative divorce requires a commitment at the outset that the parties will either succeed in the collaborative process, or the attorneys will withdraw from the representation. Starting the divorce over with new attorneys is an additional expense not present with traditional divorce mediation.

Should you need the assistance of an experienced divorce attorney in Creve Coeur and O’Fallon or have questions about your divorce situation, know that we are here to help and ready to discuss those questions with you.

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