When it comes to divorce, there are a lot of choices. Gone are the days when divorce was a one size fits all type proposition; these days, there are many more options. Though you still have to have grounds for divorce, potential grounds include both traditional fault based options as well as no fault.
Keep in mind that no fault divorce doesn’t mean that there wasn’t any fault; it just means that, for whatever reason (but, normally, for the sake of expedience and efficiency), the parties have made a decision to move forward without regard to fault. When you consider a no fault divorce, a number of interesting options unfold for you to choose from.
While fault based divorces follow a more traditional (read: in court litigation based) pattern, no fault divorces have allowed attorneys, judges, and mediators to come up with different methods to resolve disputes between couples. The result? Divorces that are custom tailored, that take both parties into account, and that cause less damage in the long run, allowing former partners to co parent and maintain their involvement, to some degree, in each other’s lives. Promoting alternatives to the traditional litigation-based approach to divorce allows people to have more control over their ultimate outcomes and preserve more of the marital assets for division between the parties, rather than encouraging them to spend a large portion of the already dwindling assets on attorneys, guardians ad litem, and judges.
Sound like a good idea? I’ll say so!
In the wake of the rise of the no fault divorce, collaborative divorce became a popular option for divorcing couples. In fact, these days, we get tons of questions about collaborative divorce in Virginia as women who are eager to have amicable, less expensive divorces hear about their options.
What is collaborative divorce?
A collaborative divorce is one where you sign a pledge not to go to court. You agree, without conducting formal discovery, to provide the other side with all the information at your disposal. Rather than a traditional divorce, whether contested or uncontested, where things feel much more adversarial, collaborative divorce is truly that—a collaborative effort.
In a collaborative divorce, both husband and wife hire collaboratively trained attorneys. In addition to collaboratively trained attorneys, you have an entire team of professionals whose goal it is to help the two of you reach a resolution that takes your best interests into account. It’s not so much a “him versus me” mentality; collaborative divorce keeps the interests of husband and wife (and kids!) at the forefront in a way that is different from other types of divorce.
In a collaborative divorce, both husband and wife have divorce coaches. They are mental health professionals (translation: therapists) who are there to help you navigate through the emotionally difficult parts of the process. Attorneys are great, as everyone knows (wait, you mean you didn’t know?), but we’re not particularly adept at dealing with the difficulties presented emotionally by the divorce process. We’re not trained to teach you coping mechanisms, help you deal with grief, anger, resentment, or sadness productively, and we, unfortunately, can’t bill your health insurance for our sessions. Divorce is akin to a death; it can be a difficult and profound experience. (I’m not saying that it’s not ultimately a good thing, though. On the contrary, I think, most of the time, our clients find a new source of strength, hope, and resilience through the process.) There’s a lot to process and certainly a period of mourning and, in a lot of ways, a therapist is the best person to help you work through all of that.
In addition to a divorce coach (one for each of you), you’ll also share a financial advisor and, if you have children, a child advisor.
The financial and child advisors are shared between the two of you. You can imagine the purpose: it’s so that that particular professional has BOTH of your best interests in mind. It’s not about financially what’s best for him or what’s best for you just like, in terms of custody, it’s not about dad fighting mom. It’s about looking objectively at the situation and determining what’s really best for the family.
If I have fault based grounds, can I get a collaborative divorce?
No. A collaborative divorce is always an uncontested, no fault divorce. Any fault based divorce is going to have to be litigated.
Why? Well, if you’re alleging fault, you’re going to have to go to court to prove it to the satisfaction of the judge. Different fault based grounds have different burdens of proof, but because there are certain civil and criminal penalties associated with the different grounds for divorce, you have to physically go to court, present evidence, question witnesses, and meet the required burden of proof. (Just like how, in a criminal case, you have to prove guilt beyond a reasonable doubt. In a fault based divorce, you have to prove adultery, for example, by clear and convincing evidence, and you have to prove desertion and abandonment by a preponderance.)
Because the end result of a collaborative divorce is a separation agreement, yours would be an uncontested, no fault divorce. Fault is only an option if you go to court, and then your divorce can’t be collaborative.
How do I find someone who can handle my collaborative divorce?
To get a collaborative divorce, you have to hire a collaboratively trained attorney. Not every attorney is collaboratively trained.
In our office Sheera Herrell is collaboratively trained. Like all the attorneys in our office, Sheera represents women only.
If your husband is also looking for a collaboratively trained attorney, he should check out Collaborative Divorce Solutions of Tidewater. Sheera is the Chair of Collaborative Solutions of Tidewater (which pretty much means that she’s the group president), but there are lots of other good attorneys there for him to choose from.
To get a collaborative divorce, you both have to be on the same page, since you both have to make the decision to hire a collaboratively trained attorney. If you hire Sheera hoping for a collaborative divorce but your husband hires someone who isn’t trained to handle collaborative divorces, you won’t be able to go through the collaborative process. It’s something that you should talk about and go into the process prepared to do.
With all those professionals, isn’t collaborative divorce really expensive?
It’s kind of hard to estimate the total cost of any divorce. A lot of it depends on how difficult it is, how much there is to divide, and how close to an agreement you are from the beginning.
While there’s no question that hiring your professional team is costly, it’s probably considerably less expensive than litigating the entire thing. If you were negotiating your divorce with a non-collaboratively trained attorney, you could go back and forth in negotiations for ages (which costs money) and then, if you couldn’t reach a solution, you’d still have to file for divorce and go through the litigated process (which, as we’ve already said, costs money).
Of course, you can also go through a divorce without hiring an attorney. You can either do it yourself or use a mediator (who may or may not be an attorney, but, regardless, isn’t employed in his or her capacity as an attorney), but there may be hidden costs associated with either of these options.
Remember: it isn’t just about what it costs you to actually get divorced. There can be additional costs if your agreement is vague or ambiguous, and if you have to go to court over and over again to fight over what your agreement means, to force him to comply with its terms, or to determine custody, visitation, and child support over again (because anything related to the children is modifiable based on a material change in circumstances).
Having an attorney on your side can help reduce the need to go to court over and over again throughout the years, which can be a major added value. Often, doing things right the first time (particularly if you’re both on the same page and you’ve worked hard to preserve a cordial and respectful relationship between the two of you) can go along way towards saving you money in the future.
Does it cost more up front to hire all the professionals for a collaborative divorce? Yes. Will it cost more to actually get the divorce decree entered? It will definitely cost more than a mediated divorce or one you handle on your own. It will probably cost more than a divorce negotiated with the help of an attorney. It will almost certainly cost LESS than a divorce that is litigated. Will it cost more in the long run? No one has a crystal ball, but people who get a collaborative divorce are typically happier than people who choose another method and are less likely to go back to court later to fight over the terms of their divorce.
To get a real estimate of overall costs, you’ll want to talk to an attorney for a one on one consultation.
What types of people choose collaborative divorce?
Lots of people choose collaborative divorce, but, mostly, it’s all in the attitude. Certain people want to make sure that their kids or their business assets are protected and they decide that the best way to do this is by collaborating.
We do see families who own businesses fairly often, because the collaborative procedure can provide the support necessary to make sure that the business is taken care of (which is often the family’s primary means of support—so it’s critically important) throughout the dissolution of the marriage. Whenever there’s a business at stake, there are a lot of questions to answer.
When a married couple owns a business, both spouses have an interest—not just the one who “owns” the business. To the extent that the business has a value, has assets, and has the potential to produce income, both parties are, to some degree, interested in it. That’s not to say, of course, that both parties plan to continue working in the business, but it’s definitely complicated. We see a lot of these couples choosing collaborative divorce.
Sheera is a great choice for any woman whose family owns a business. She’s a certified financial planner, and has a ton of experience handling cases with complicated equitable distribution and handling business valuations.
We also see people choose collaborative divorce when they want to keep their kids at the forefront. (Not that people who choose other types of divorce are saying, “I don’t give a crap about my kids,” because that couldn’t be further from the truth. It’s just that some couples see the presence of the child expert and love the thought of working through their divorce that way.)
Collaborative divorce is more and more popular all the time because it allows the parties to take control over their divorce and affect the outcome in a positive and productive way. People who collaborate over their divorces tend to be the happiest with the overall outcome, and the best able to co parent with each other after the divorce.
For more information about collaborative divorce or to schedule an appointment with Sheera (trust me, she’s awesome!) give our office a call at (757) 425-5200.