Collaborative divorce is a divorce in which both parties, the husband and the wife, sign on to retainer agreements with their respective attorneys in which the attorneys agree that they will not take the case to court. They agree to keep the case out of court to try to settle out of court and use the best efforts to do whatever they can to settle it without going to court.
It’s a good thing in the sense that it as long as both parties are intent on keeping their attorneys, it will tend to dissuade people from going to court. But it’s a bad thing because negotiation can be stymied by the inability to exercise the leverage, which most people enjoy in negotiating an uncontested divorce, which is obviously if we can’t get what we’re looking for here at the table, we’ll have to go to court to get it. And that, I’m going to say, hardball leverage is missing in a collaborative divorce.
It is actually a very important thing, and it doesn’t have to be a nasty thing, but the other side should know that if they're being unreasonable and not recognizing the state of the law, the state of the facts that would in a court case give the party taking a position the upper hand and they're not recognizing that leverage, then it really does put the person who has a natural advantage on a particular issue at a disadvantage.
If I’m representing the wife and she’s been the primary caretaker the entire time in a five or ten-year marriage, have two children or what have you, and the husband takes the position of I’m not going to give you custody. I want shared custody. I don’t really care what you say. Well, if I’m representing that wife, well, I’m going to want to take that case to court because I’ll know, and they’ll know, that I can win that case in court, and I will never even have to go to court, but the fact is that their knowledge that I can take it court will usually get them to be more reasonable.
But in a collaborative divorce, that piece of the pie is missing because they know I can’t take them to court. Of course, the client could, but the client could only do that by firing me because they’ve hired me as a collaborative attorney where I’ve agreed to not go to court. So to exercise that leverage means stopping a relationship with an attorney who you may have grown to trust and you have invested quite a bit in. So I personally do not prefer a collaborate divorce arrangement.
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