Collaborative Divorce: Factors to Consider

If you are facing divorce in North Carolina, there are several issues that you will have to address before your legal separation from your spouse is finalized. One such issue is the method by which you both want to finalize your legal matrimony — litigation, mediation, or collaboration. Which approach to use is determined by the facts and circumstances of the case, which are as unique as the parties involved.

Sometimes individual preferences drive whether a couple wants to resolve their marital dispute through litigation, mediation, or collaboration. Below are the most common factors that will likely influence your choice:

Key features of traditional litigation divorce: When a family law matter is resolved through judicial intervention, it is referred to as litigation. The litigation process is often used in Davidson divorce matters when the couple is unable to resolve their differences through any other means. During a traditional litigation divorce, a North Carolina judge makes all decisions pertaining to the divorce and memorializes these decisions in a court order. The order is legally binding on both parties and they must comply with its terms as written. Litigation of a divorce can be extremely stressful, time consuming, and costly. It also puts the family’s affairs and disputes with the court making it public record for the world to see, except under certain circumstances.

Key features of divorce mediation: Divorce mediation, on the other hand, may or may not involve attorneys. In mediation, the couple tries to come to an amicable resolution on matters involving the divorce with the help of a third-party neutral - the mediator - who helps negotiate a settlement. Unlike a judge, the mediator has no power to decide the case. Also, unlike litigation the parties are under no obligation to hire an attorney during the mediation process. Of note, the mediator is not there to provide legal advice but, rather, to help broker an agreement that is suitable to both parties. Divorce mediation tends to be more informal than litigation and collaborative divorce and less expensive.

Key features of collaborative divorce: Collaborative divorce is a semi-hybrid of traditional litigation divorce and divorce mediation. While the court is not involved in collaborative divorce until the end when it approves the parties’ agreed upon settlement, it does require the use of individual attorneys for each spouse as well as jointly hired professional experts. Before engaging in collaborative divorce, the parties must enter into an agreement whereby they promise not to go to court. If the divorce is not resolved during collaboration, the attorneys must withdraw representation and the spouses may pursue litigation with new legal counsel. Collaborative divorce is often more informal, more efficient, and less expensive than traditional litigation.

There are several benefits that come from collaborative divorce that include having separate legal representation and levelling any power imbalance that may exist in the relationship.

If the spouses wish to seek the guidance of an attorney who can look out for his or her best interests during every step of the process, collaborative divorce is likely the best option. This is particularly true if the divorce involves more complicated issues - whether legally, financially, or otherwise - that the spouses do not feel competent or confident enough to negotiate themselves. Even if your matter is not very complicated, you may just feel more comfortable with the concept of having a legal professional to confer with and seek advice from at every step of the process.

If a couple has long-standing relational dynamics that leave one or both feeling at a distinct disadvantage on certain issues, the structure and added insulation of a collaborative divorce may be right for them. Having a collaborative attorney by your side may boost confidence when expressing concerns that are of importance to you. On the other hand, if you tend to overpower the conversation with your spouse, your collaborative attorney can reign you in as needed, keeping in mind that the goal in the end is to achieve an agreed upon resolution.

There are some downsides to collaborative divorce, however. The main one is that should the collaboration be unsuccessful — in other words, not result in a divorce settlement — you will have to start all over with a new divorce lawyer. The result could be added expense and delay during an already difficult time. A failed collaborative divorce may also result in a more contentious litigated divorce due to disillusionment of the parties.

If you or someone you know is interested in learning more about collaborative divorce process in Charlotte, Mooresville, Monroe or other parts of North Carolina, contact the family law attorneys at Arnold & Smith, PLLC. We can help you resolve your marital dispute whether it is through divorce mediation, collaborative divorce, or traditional litigation. Contact our firm today to schedule your initial evaluation with one of our skilled family law attorneys.