Collaborative Divorce in Virginia
Rather than fight it out in court, lots of couples (both the normal kind and the celebrity kind) are looking for alternatives ways to settle their divorces. Unlike personal injury cases, there’s really not some dramatic windfall to be won in a divorce. The parties have the assets that they had when they decided to separate, and there won’t suddenly be more. In fact, there will be less, because those assets have to be divided in two. Whether you’re a normal person or a celebrity, you know that dividing something in two means that each half is less than the whole.
The best way to maximize the amount of money that you have leftover after a divorce is to minimize the amount of money that you spend fighting it out in court. Fighting in court takes a lot of time and costs a lot of money. Think about how much is involved in actually going to court. You have to hire an attorney, and then your attorney has to file the necessary paperwork, find and prepare witnesses, prepare opening and closing statements, attend pre trial settlement conferences or mediation, actually litigate the trial, and tons more. There are hours and hours and hours of preparation involved in trial planning and strategy, and when the average Virginia divorce attorney’s hourly rate is somewhere between $250 and $300, that cuts into your retainer—fast.
More and more couples these days are looking to alternatives to the traditional litigated divorce, both in an effort to maintain as much respect as possible for each other after being in a struggling relationship (after all, you have to co parent later on) and to save money and ensure that each has the best chance possible for a fresh new start post divorce. These are certainly lofty goals, but as time has passed and divorce practice has evolved, we’ve developed new practices that can help minimize the amount of time spent fighting and maximize out put, so that both of you walk away with as much as possible.
Collaborative divorce is relatively new way of practicing Virginia divorce law, and it’s something that more and more people ask about on a daily basis. It has a tremendously high success rate, and boasts some of the most satisfied clients. It’s really interesting, because, first and foremost, it’s based on three main principles:
1. A pledge not to go to court;
2. An honest exchange of information by both parties; and
3. A solution that takes into account the highest priorities of both spouses and their children.
Collaborative divorce is an alternative to traditional litigated divorce that affords both parties the opportunity to work together to reach a resolution. We most often see people who own a family business or have children in common elect to participate in a collaborative divorce, because they view the ultimate outcome (and their ability to work together with each other later on) as major goal. Keeping things friendly and amicable is important, because it makes it possible for the parties to address whatever mutually agreed upon concerns are the most important. The court system tends to be destructive towards families and other relationships, and the collaborative divorce process seeks to resolve disputes in divorce through settlement discussions between the parties and a team of professionals employed to help reach a resolution that takes into account both parties interests and priorities.
If you and your soon to be ex husband are headed towards divorce but want to ensure that it moves forward in a way that allows you to retain your respect for each other and keeps things amicable, you may be the perfect candidate for collaborative divorce.
How do I get started if I want to move forward with a collaborative divorce?
In order to get started with a collaborative divorce, you’ll have to hire a collaboratively trained attorney. Not just any attorney is also collaboratively trained, so you’ll have to do some research to make sure that whoever you’re looking into hiring is also trained to handle collaborative cases. In our law firm, Sheera Herrell is collaboratively trained attorneys.
To decide whether you’d like to move forward with a collaborative divorce, it’s a good idea to schedule an initial consultation with the attorney to ask some questions. Most attorneys in our area do charge for initial consultations, but don’t worry; if you decide not to move forward with a collaborative divorce, these attorneys are licensed to handle non collaborative cases as well. You can always meet with a collaboratively trained attorney, ask the questions that you have about the process, and then ultimately decide to retain them to help you obtain a divorce in another way (like, through negotiation or even litigation).
Hiring a collaboratively trained attorney will give you an opportunity to talk through the advantages and disadvantages of collaborative divorce and ultimately decide whether this process is for you. If it is, you can move forward with the next step in the process: assembling the other members of your collaborative team.
What do you mean, there’s a team of professionals to help?
A number of people will be involved in your collaborative divorce. Each person has a specific job, and they work together to help you make critical decisions regarding legal, financial, and emotional issues that will come up in your divorce. They’ll help you make rational, carefully considered decisions, and give you much needed advice on how to handle different things as they come up.
There will be a couple of people on your collaborative divorce team. Specifically, your team will include:
1. An attorney for each of you.
You each retain your own attorney. Each attorney has to be collaboratively trained. You can’t retain one attorney for both of you to use, because that goes against Virginia’s ethical rules. Really, that rule just exists to protect your best interests. It’s your attorney’s job to represent you (and only you) as zealously as possible. How can your attorney be zealous on your behalf when to do so means sacrificing the best interests of your husband, who is also a client? It’s not possible. You hire an attorney to represent you, to give you advice, and to help you make sure that you’re not signing something that is going to hurt you later on. Your attorney just can’t play that role for both of you.
You can each pick your own attorney, so long as your attorney is also collaboratively trained. For more information on Virginia collaboratively trained attorneys, please click here.
2. A divorce coach for each of you.
You and your husband will also each hire a divorce coach. A divorce coach is a licensed mental health professional who will help you handle the emotional issues associated with divorce. Your coach will help encourage you to handle things positively during the divorce, and help redirect the conversation if you’re heading off track. Your divorce coach will be the one to help you when you get upset with your soon to be ex, and will help manage emotions and tensions so that your divorce can be successful.
3. A shared financial consultant.
Because one of the main points of collaborative divorce is to take into account the best interests of both parties, you share a financial consultant. The financial consultant will review your incomes and assets, identify your goals and priorities, and help you develop realistic choices for the future.
4. A shared child specialist.
Assuming that there are children, you and your husband will share a child specialist as well. (If you don’t have children, you won’t hire a child specialist.) Again, because your main goal is to focus on shared goals and priorities (and assuming that the children rank somewhere at the top of that list of priorities), the child specialist will meet with you, with each of your children, and help everyone talk frankly and openly about their feelings and concerns. The child specialist talks to the team about the children, including addressing their hopes and fears for their future lives. The child specialist will probably make a recommendation to the group, and help husband and wife come together to make a decision about custody that takes the children into account. A major governing philosophy of collaborative divorce is that “the children are a priority, not a casualty.”
How do we find out what there is to divide?
Before you start the collaborative process, you and your husband both agree to openly and honestly exchange information. It’s a sort of “no holds barred” policy that allows both of you to ask for and receive any information necessary to divide up the marital assets and liabilities. There’s no hiding assets, there’s no secrecy or mistrust. Both parties agree to cooperate and provide any and all information necessary to move forward with the divorce.
Unlike in traditional divorce, there’s no formal discovery process. There’s really no “formal” process at all; both groups come together, sometimes with all the professionals involved, sometimes with only a few, and negotiate. Both parties are expected to be cooperative and respectful with each other, and not to try to hide assets or be secretive.
If you don’t think that either you or your husband is willing to be completely open and honest, you may not be the ideal candidate for a collaborative divorce.
What if we have to go to court?
Ultimately, the hope is that you never even wonder whether you’ll have to go to court. Since you and your husband make an agreement to avoid court, it’s definitely not in your best interests to change your mind later on. For one thing, if you do decide to go to court, your attorneys will have to get out of your case. Neither attorney can continue to represent you if the collaborative negotiations break down.
Collaborative divorce is not like traditional divorce in a lot of ways. For one thing, it’s not nearly so adversarial. In a typical attorney client relationship, the attorney represents the client exclusively; there’s no such thing as sharing information between both parties, like there is in collaborative. Remember how I said you make an honest exchange of information? That’s unique to collaborative divorce; in traditional divorce you have to formally request that information in the discovery process. There’s no “open book” policy in traditional divorce; whatever the other side forgets to ask for or leaves out isn’t provided. Because of the way collaborative divorce is structures, and because it’s cooperative rather than adversarial, your attorney can’t continue to represent you if you go to court instead of finishing with the collaborative process. In Virginia, the way it works is that anything said in mediation or other settlement discussions are not admissible in court. Your collaborative attorney can’t then represent you in court, knowing everything that she does from representing you in your collaborative case, and be able to do it ethically. There’s no way to erase that knowledge and be able to switch over from being a collaborative attorney to being a litigating attorney.
The collaborative approach to divorce is not like traditional mediation or litigation models; it’s really something entirely it’s own. It’s innovative, and gives both parties the freedom to get divorced without the introducing the possibility of so much destructiveness that seems to be inherent in traditional divorce practice. Collaborative divorce professionals have a very high rate of success, and their clients typically report being among the happiest in terms of their outcomes.
For more information about collaborative divorce, or to schedule a consultation with Sheera Herrell, give our office a call at (757) 425-5200.