A collaborative divorce process is one way to pursue an uncontested divorce. At the outset of the settlement process, the parties and their attorneys sign a collaborative divorce contract that binds the attorneys to settling the case out of court. They agree that if the case cannot be settled in the out-of-court setting, that neither attorney can represent his/her client in court. This is intended to help ensure that the parties will use their best efforts to settle the case out of court on the theory that the expense and trouble of needing to hire another attorney to go to court will work as a disincentive to unnecessary litigation.
The obvious downside to collaborative divorce is the loss of the client’s first choice of attorney if negotiations break down and the case must go to court. An attorney-client relationship is built on trust and mutual regard. Having to hire a different attorney for litigation means the parties no longer have their chosen advocates, and must also incur additional expense for another attorney to learn about the case.
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More importantly, though, the confines of a collaborative divorce can actually undermine the settlement process. Unfortunately, many uncontested cases contain one or more issues that are difficult to settle. Although the chance of reaching a compromise of differing positions may be better for some issues in a collaborative divorce, it is often ineffective when the positions are too far apart or too strongly held. When this happens, the collaborative divorce attorney is unable to credibly declare with confidence that he/she will succeed on the issue at hand by going to court. This is one of the chief methods by which settlements are achieved, and it’s not simply because the added expense involved will intimidate an adversary. The persuasive effect of an attorney advocating a trip to court is often based on the attorney describing the extent of legal support for the position, including statutory and case law precedent, as well as that attorney’s experience in the courtroom advocating the same or similar position in other cases. This persuasive effect is severely undermined if that attorney has agreed in advance not to go to court. In short, the thing that a client most needs from his/her attorney — the ability to settle the tough issues — is lost at the outset in a collaborative divorce.
Collaborative divorce works fine where there are no difficult issues, but it is difficult to predict at the outset that a case — even an uncontested case — will not present problems in the future. Given the investment that the parties are making in hiring attorneys to resolve their divorce, they may not want to hire counsel on terms that limit their effectiveness.
For the reasons stated here, the attorneys at Petroske Riezenman and Meyers do not perform collaborative divorces. We believe that an uncontested divorce can be negotiated in a cost-effective manner without placing limitations on representation that undermine the process. Setting clients up to fail in negotiations with a collaborative divorce runs contrary to that mission.