Divorce is never fun. Some individuals dread the divorce process so much they completely and unreasonably avoid it, even though they are unquestionably miserable. This is often because staying unhappily married is deemed better than initiating a hostile and/or a protracted divorce. While the divorce process is certainly difficult, it doesn’t have to be an ugly, winner-take-all battle. Today is very common for divorcing couples to use alternative methods to resolve their divorce which allows them to retain control over the outcome. Collaborative divorce is an increasingly popular means of resolving a divorce.
In a collaborative divorce, couples work together with their lawyers and other professionals outside of court. They freely exchange information, documents, and ideas on how to resolve their divorce until they ultimately reach a deal. If they reach an impasse, either party is free to abandon the process, and proceed to court, but both parties must hire new attorneys. There are many advantages to a collaborative divorce. Working together with each other’s needs in mind, collaborative divorce allows a couple to set the tone for a more amicable post-divorce relationship and allows them to find creative solutions potentially not possible in litigation.
Honesty and transparency are essential to the success of a collaborative divorce. Unfortunately, some spouses turn to collaborative divorce as a means of retaining control over their spouse hoping to use their ignorance about financial matters or reluctance to negotiate or litigate to gain an inequitable deal. For these reasons, it’s important to consider whether your spouse will participate in the process in good faith. Your spouse may insist that he or she has your collective best interests at heart, but that may be far from the truth. How can you know if your spouse is committed to resolving your divorce fairly and cooperatively without court intervention or is secretly manipulating you to gain an unfair advantage? Below we discuss some factors that may help you determine whether your spouse is being genuine and honest and whether collaborative divorce is a good fit for you.
A divorce ends your financial ties to your spouse or defines how and when they will end. It’s not simply about no longer being married and sharing a life together. You can live separate personal and social lives without getting a divorce. To settle your divorce, you need to inform your judge how your assets and liabilities will be divided or allocated. In order to do that, it’s critical to know what your assets and liabilities are. If you don’t know that a retirement account exists, how will you get your fair share? If you do not pay the bills, prepare your income taxes, communicate with your accountant directly, have your financial adviser’s name and email already saved in your phone, know the approximate balance of your martial retirement accounts, then you need to pause for a moment before proceeding.
It’s not uncommon or inappropriate for one spouse to handle a couples’ entire financial life. However, there is a critical difference between couples that keep each other informed and make financial decisions together, but elect to have one spouse implement those decisions, and a spouse who is intentionally left in the dark about the marital financial status (this situation is commonly referred to as the “out spouse”). (Incidentally, there is also a difference between a spouse left in the dark and a spouse that simply didn’t care and didn’t want to have any input). If you feel like you have been left in the dark, not consulted about financial decisions, or that it would anger or irritate your spouse to discuss finances, this is a potential red flag that collaborative divorce is not in your best interests.
In a collaborative divorce (or any alternative to litigation) you are relying on your spouse to voluntarily share this crucial information. If your spouse was reluctant to share with you during the marriage, it’s unlikely he or she will suddenly change. Instead, they may stall and make excuses. Sometimes, they try to persuade you that you don’t need the information and you should simply trust them. They may suggest that you shouldn’t waste money on lawyers. When you have been married for years and shared life’s most intimate moments, it’s easy to be lulled into a false sense of security and trust that your spouse is looking out for you. It’s also possible that he or she is hiding something to prevent you from getting your fair share of marital property. If collaborative divorce is successful, there must be a prompt and free exchange of information.
You need access to savings, income, and/or credit cards for routine expenses and emergencies while you negotiate the terms of your divorce. If you don’t already have access to a reasonable share of your marital savings, income or access to credit you should consider whether your spouse can cooperate without court intervention in divorce. If your spouse didn’t share these things during the marriage, that’s not likely to change while you divorce.
Divorce requires change, but until a divorce is finalized courts typically prefer to maintain the status quo with respect to finances and parenting. For example, both spouses can be required to contribute to household expenses as they did prior to the divorce even if they have moved out of the marital home. The status quo also prevails for parenting time and decision making too. If one spouse took care of the children while the other worked, your routines should look pretty similar. A deviation in routines can signal bad faith. For example, a partner who previously worked full time and had little child care responsibility may suddenly wish to insert themselves into the lives of the children by spending more time with the kids or taking care of their daily needs. Such a change in behavior can signal that they won’t accept the status quo and may want a change you don’t agree with or didn’t anticipate.
You don’t need to agree on all issues regarding your children, but you should be able to calmly share any issues pertaining to your children and expect a rational response. Imagine your youngest child accidentally sprained an ankle while playing catch. If you inform your spouse that your child was hurt without fearing their response or reaction, you are probably in good shape to proceed with mediation or collaboration. If on the other hand, you fear judgment, blame or hostility or an otherwise unproductive conversation, then you should speak to your family law attorney to see if a collaborative divorce is in your best interests.
It should go without saying that if your spouse has physically or emotionally harmed you or your children, you are most likely not able to handle your divorce in a cooperative fashion. Your safety should be your top concern. Your attorney can and should be your liaison and advocate so that you can stay safe while you work toward divorce.
A collaborative divorce assumes open communication. Open communication does not mean you text each other your every whim. You can actually prefer not to speak to your spouse, and may even argue when you do, and still have open communication. For our purposes open communication simply means you are generally able to convey your thoughts and opinions to your spouse. Your spouse may not agree and may say so, even loudly and angrily. The point is that you shared your viewpoint (even if it’s conveyed with the help of your divorce lawyer). If you fear upsetting or disappointing your spouse or fear their reprisals, then mediation or a Collaborative divorce is probably not in your best interests.
Collaborating is not the same as acquiescing or conceding to avoid further acrimony. If your spouse says he or she wants to keep the family home and you disagree, you should feel comfortable stating that you have a different opinion. Of course, this can be done through your lawyer, you don’t need to engage your spouse yourself. If you fear upsetting or disappointing your spouse or fear their reprisals, then you should share your thoughts with your attorney so he can guide you to an appropriate method for resolving your divorce favorably.
Collaborative divorce works well when both parties can assert their positions without aggression or fear of harm. It can have unintended consequences if one party is too passive, too aggressive or withholds crucial information. At Goodman Law Firm, we work closely with each client to help them find the most appropriate method for resolving their divorce. If you are heading toward divorce or are in the midst of a divorce, contact our talented team of legal professionals to find out how we can help you.
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