Collaborative Divorce Vs Litigated Divorce: What’s the Difference?

By: Meggin Rutherford

People have often heard the worst about divorce court.  They are not necessarily wrong.  Collaborative Divorce is an excellent way to get a divorce without going to court.  Learn how they are the same and different below:

The same:

1. Full and complete financial disclosures.
2. 2 attorneys (optional in litigation).
3. Mediator/Neutral (mediation is required in Colorado at least once).
4. Handle all parenting issues.
5. Handle all financial issues.
6. Get final decree and orders.

 

Different:

1. How you get financial disclosures.
   1. Litigation: Mandatory initial disclosures. If not enough, then time consuming and expensive discovery process that may include fighting before the court.
   2. Collaborative: Just ask and each party provides any relevant information.
2. The outlook of the attorneys.
   1. Litigation: the attorneys are always thinking about how they can use information to their advantage. May not be focused on solutions, but just more ways that they can fight.  Is often driven by the attorney’s priorities instead of the client.  The center of the attorney’s focus is on getting the most for their client even if it causes harm to the children or the other party.
   2. Collaborative: the attorneys and professionals are all solutions oriented. They do not want to fight just because they can.  Instead they think creatively to come up with solutions that will work for the whole family instead of just their own client. 
3. Method of mediation
   1. Litigation: Often a grueling 8 hour mediation session where both parties make decisions just because they’re exhausted, not because they’re well informed. If everything doesn’t get done at that one time then it may fall apart later.
   2. Collaborative: Meetings are shorter in length (usually about 2 hours) so that everyone is making agreements with a fresh mind and full understanding. This avoids agreements just for the sake of being done.
4. Handle parenting issues.
   1. Litigation: The focus can be on getting back at the other parent instead of what is best for the children. Evaluations can be expensive and just cause more disagreement.  It is often felt to be a win/lose situation where one parent wins over the other.  If that is the case, the child always loses.  If something happens with the child it is very difficult to get in front of a judge quickly.  If there is disagreement about how to handle decisions or children then they may pay separate experts to fight, but not to actually teach the parents better skills or provide answers.
   2. Collaborative: The focus is on the children and getting them the parenting time that is best for them. If there is an emergency then the team can react quickly to help the child instead of months delay to get a judge to act.  We can engage additional experts who help the parents together to address challenging child issues.

 

5. Handle financial issues
   1. Litigation: The same efforts are duplicated. Each attorney gets and reviews the same financial information.  They each run their own spreadsheets and analysis.  Often litigation analysis does not consider the long term financial health of both parties.  They divide based on the current values without consideration of what that looks like over 2, 5, or 10 years.   It is also often get as much as you can without regard for long term consequences or fairness.  (eg: get maintenance as long as possible instead of only the time needed).  If there are businesses or complex holdings each party can spend tens of thousands of dollars trying to value and divide these assets.  Someone who is not financially savvy can be steamrolled without understanding what they are agreeing to.
   2. Collaboration: A financial neutral can help ensure that everyone understands what they are doing. They make models of division so everyone sees the options. They gather all financial information and avoid paying for two attorneys to do the same thing.  The team looks at the whole marital estate to determine the most equitable division over time.  This includes maintenance only for as long as it is necessary, and considering the cash flows of both parties and what they really need.  If there are complex holdings the team can agree on additional experts for valuation and advice.

 

6. Get final decree and orders.
   1. Litigation: Can involve stressful and expensive fighting at court and multiple court appearances. A judge who knows nothing about you, and who may be very grumpy because they missed lunch, holds your future in their hands.  If you are able to come to agreements before court then the judge will sign your agreement and issue decrees.   May take many months or years to fully resolve.
   2. Collaborative: Typically it is done completely outside of court. The attorneys can file a fully complete packet at once and then you never have to go to the courthouse.  You will receive your decree by e-mail at about 91 days after you file.