For some people, by the time they’re ready to move on from a marriage, they mistakenly believe that moving through the court process is the only or best option. The moment at which you decide to move forward with a divorce can be riddled with feelings of disorientation, worry and fear. But what you may not know is that the choice you make about the process to use – litigation, mediation or Collaborative Divorce – will be a monumental decision that will affect the course your life and the lives of your children will take. How will you choose to solve interpersonal conflict? Who will you vest with power to decide the outcome? Who will assist you with the process?
When you’re ready to end a relationship, it can feel like you just want to “get it over with” and have a judge decide. When you go to court, you give total control over your life into the hands of complete strangers: the judge, court-appointed staff and court-appointed experts. Most people prefer to control the outcome by negotiating with their spouse for solutions that fit their family.
When I have litigated child custody matters, the first thing the judge would say was some version of this: “If you can’t make decisions together, I – a complete stranger to you and your family – will decide what’s best for your children.” If the judges believe that vesting power in their hands is a solution of last resort, divorcing spouses should proceed into the courthouse with tremendous caution.
Proceeding with a Collaborative Divorce is a healthier alternative for most divorcing families. Collaborative Divorce means you’ve agreed not to litigate. Collaborative Divorce means that you and your attorney and your spouse and their Collaborative attorney sign an agreement that the attorneys cannot represent you if you choose to take one or more issues of your dispute to court. This agreement, called a Disqualification Clause, is meant to be an incentive for all involved to find a way forward to negotiate to a durable marital settlement agreement.
Deciding not to litigate may feel like it’s a dangerous decision to make or one that could drag the process on forever, especially if your spouse is having a difficult time coming to terms with the hard realities of the end of the marriage.
With those fears in mind, you may believe that handing over the keys to your life to a judge is better than keeping those keys in the hands of your spouse. The conflicts between you and your spouse may have crystalized on opposite ends of a contentious issue related to child-rearing or finances, for example. That crystallization may be obscuring the many areas where you still share common values and interests with your spouse.
The court process involves the tasks of preparing for trial whether or not you actually end up in front of a judge. Your litigation attorney’s job will include spinning a narrative to present to the Court about the facts related to the issues at hand. During the process of creating that narrative, both parties’ positions become more entrenched around that story. After all the pleadings (statutorily required filings) are submitted, the hearing takes place. At that point, it is typically the attorneys’ jobs to do all the talking. You hand your power and your voice to the attorney, and everyone hands over their power to the judge.
There is another way. The idea of Collaborative Divorce might seem like it will take more time. There are required disclosures that you and your spouse will need to assemble. You may end up having to wait for your spouse to come to terms with the end of the marriage. But you will have to exercise infinitely more patience as your case winds its way through a backlogged court system, and you will have virtually no hand in fashioning the outcome of the most important decisions in your life. Choosing a Collaborative Divorce is an act of stepping into your own power where you have more chances for crafting an agreement that benefits you and your family for years to come.
Liat Sadler is an attorney in San Francisco. More information in her bio on the “Find A Professional” page.