Collaborative Divorce Questions

Q. Which is more affordable, a collaborative divorce or conventional litigation?

A. In most cases, conventional court litigation is the costliest way to deal with a marital impasse. It takes both and emotional and financial toll on the parties involved. A conventional court-based divorce will usually start with one party moving for temporary support. This results in an order from the court that has only a short-term effect on the situation instead of something that is more permanent. A conventional divorce typically takes far more time-up to a year or longer. There is also a lack of confidentiality. The parties may be encouraged to participate in legal maneuvers by the lawyers, several hearings and expert witnesses on both sides. The end result is uncertain and difficult to predict.
By contrast, with a collaborative divorce, confidentiality is maintained.This process can move more quickly and it is typically less expensive than the conventional process. With the collaborative variety, the attorneys and others professionals involved in the case direct their energies toward achieving conflict resolution and a realistic result that both parties can live with.

Q. Does it make economic sense to do a collaborative divorce?

A. When measured against the attorney’s fees involved with taking a case to trial, a collaborative divorce can quite often make good economic sense. But you may still need to involve various professionals like the psychologist, accountant, and perhaps a home appraiser. By contract, these pros are allowed to collaborate with the lawyers at any time they think is necessary, which can add to the cost and raise concerns about the economic viability of this option.
If for whatever reason the collaborative divorce does not work out, the participants are on the hook for all the costs, and then are faced with beginning from scratch with new trial attorneys and other professionals. For this reason, if there is any concern that the parties involved will not be able to get along well enough to resolve their disputes through the collaborative process, than a conventional divorce should be strongly considered.

Q. What can be done if one of the two parties attempts to use the collaborative process to gain an advantage over the other?

A. This type of occurrence is possible. You can never guarantee that one spouse or the other won’t use this process to take advantage of the other, just as you can’t guarantee this during a traditional court-based divorce. However, you still have an advocate (your attorney) who is watching out for this kind of thing. If your attorney sees that your spouse is not acting in good faith, he/she will notify the opposing attorney right away. At that point, you have the option to terminate the collaborative process and pursue litigation. Furthermore, under the collaborative agreement, the attorney for your spouse is required to withdraw if they find your spouse to be participating in the process dishonestly.
As an example, if one spouse has withheld or altered one or more document, or if they are intentionally dragging their feet for some kind of financial benefit or other type of gain, the attorneys are under agreement to pull out of the case and stop representing the dishonest client. This could also happen if one of the parties does not honor an agreement they made while negotiations were in progress, like a commitment to go to counseling.

Q. What if the paying parent suffers a job loss or wage reduction? Does this circumstance assure that they can get a reduction or elimination of their child support obligations?

A. Just because a parent loses his/her job or has his wages cut does not mean the court will approve a reduction or elimination of their child support obligations. In order to convince the court that a reduced child support payment is warranted, it must be shown that the job loss or wage reduction is likely to be indefinite.
Further, the payor must show that he has made a reasonable and repeated effort to find good paying employment and has been unable to do so.
The payor must prove that he lost his job involuntarily. Also,the payor may not take a voluntary retirement for the express purpose of having a lower paying job.

Q. What factors determine the amount of child support?

A. There are several factors that are taken into consideration when a court decides the amount of the child support they will award:
1. The child’s needs;
2. The parties’income and current living standards;
3. The parties’ financial assetsand debts;
4. The parties’ capacities to earn;
5. The child’s educational needs and expenses;
6. The child’s ability to earn;
7. Child support orders from the court for previous children; and
8. Any and all other factors that may be pertinent to the case.

Q. What type of couple would benefit most from a collaborative divorce?

A. Those who benefit most from a collaborative divorce are couples who:

  • Want to come out of their divorce with a relationship that remains cordial, respectful and supportive if, for no other reason than that they want their children to see that they can still get along despite the differences that caused the separation;
  • Want to be able to communicate more effectively and co-parent their children in a peaceful and rational manner;
  • Seek to reach a settlement agreement that gives each spouse as much of what they need as possible without inflicting harm on the other; and
  • Want to shield their kids from the psychological and emotional pain that is often inflicted from a long and drawn out court-based litigation process.

Q. Isn’t this only for cases where everyone agrees?

A. Not at all. While collaborative is not recommended for cases where there is alleged physical abuse or a high amount of conflict, it is common for people going through divorce to experience anger, hurt and frustration. In that situation, collaborative gives the attorneys options not otherwise available in traditional litigation. If a party’s anger starts to overwhelm the work that needs to be done, the attorneys will recommend that one or both parties see a therapist to deal specifically with the anger, so that the process can continue.

Q. Is it possible to modify a child support agreement?

A. Yes, when it is shown that there has been a “change in circumstances.” The definition of “change of circumstances” under Pennsylvania is limited. There are a number of possible scenarios that would fit this definition. Either party may file a motion to increase or decrease the amount of support. Both parties are then required to submit all relevant information for evaluation by the court.

In practice, it is rather difficult for a father who lost his job or received a pay cut to have his child support payments reduced or eliminated. Usually, the court will allow for a temporary reduction until the father is able to find a job again. If the father is suffering from some kind of permanent health issue that will hinder him from working in the future, then the court may be more inclined to grant his request for child support reduction/elimination.

One other note: if the father has more children with a new girlfriend or wife, the court may allow a reduction in child support payments to the former spouse. On the other hand, the court may decide that the father needs to take on additional employment to maintain the present level of support and support his new family as well.

Q. What if it turns out that my spouse and I agree on most everything except for a couple of things in which we are at an impasse? Would this mean giving up on the entire collaborative process and going to court?

A. In this circumstance, it is possible to set those issues aside and turn them over to the discretion of a private judge that is picked by both parties or to meet with a mediator. But for this to happen, everyone involved (including the attorneys) must agree to it. This is also done with caution and with safety measures in place so as to not undermine the integrity of the collaborative process. For this reason, the parties must agree that taking this course of action will not in any way jeopardize the good faith that has been built up through the collaborative process.

Q. Why would someone want to pick a collaborative divorce rather than mediation?

A. The big difference is whether or not someone is comfortable being involved in negotiations with a spouse on their own and without an advocate. During mediation, it’s just you, your spouse, and the mediator. During the collaborative process, both sides have an attorney to advocate for their best interests. The attorneys are also helpful in steering both parties toward a satisfactory agreement. They also have more time to dedicate to the case for meetings, brainstorming, and helping the parties arrive at creative solutions they may not have come up with on their own or even with a mediator.

Q. My attorney tells me he reaches settlements without litigation in most of his cases. How would a collaborative divorce differ from what he does, since he will most likely settle the case anyway?

A. While it may be true that the majority of court-based divorces settle before going to trial, the settlement usually doesn’t occur until the parties are very close to going to court. By the time it gets to that point, a lot of money has already been spent and a lot of damage has already been done (emotionally and otherwise). Also, there may have been decisions made early on in the case by a trial judge that knows very little about your personal situation. These decisions may be difficult for both parties. Settlement usually occurs when both parties are under a lot of stress and anxiety. This can often cause them to make poor decisions on what they agree to and cause one or both parties to regret the agreement. Further, a settlement is usually reached under the threat of a trial, and the terms and conditions are often decided based on what the attorneys believe the judge is likely to rule if they did proceed to trial.
The collaborative process is entirely different. The atmosphere is not adversarial. Instead, it is a cooperative environment where both parties are encouraged to resolve their differences in a creative and respectful manner. The process is generally much faster, less expensive, more personalized, less tense, and more satisfactory than a traditional court-based divorce.