A colleague asked for ideas about disadvantages of collaborative divorce, to prepare for a newspaper interview. Here's what came to mind:
1. In litigation, you can use the timing and immense stress and fear of impending trials to get people to sign settlements they never would agree to if they actually had time to consider them.
2. In litigation, if you have deeper pockets or more outside support, you can often get everything you want by making the enemy deplete his war chest very early in the process, beginning with pendente lite hearings, depositions, discovery requests, discovery disputes and enforcement, pendente lite order enforcement, etc., until he's completely out of money and has to unconditionally surrender.
It's a lot harder to do that in collaborative because (a) it doesn't cost anywhere near as much as litigation, and (b) when resources are unequal there's usually an agreement on how to pay both clients' costs.
Neither of those bothers me, but you could call them drawbacks of the collaborative process.
3. Conversely, one thing that DOES bother me about collaborative, is, what if one spouse uses up their entire war chest in a collaboration that fails, while the other spouse doesn't? True, that is just as much of a problem, or more, in litigation or conventional divorce negotiation, but it still can be a challenge and you need to be thinking about how to prevent it in each collaborative case. Common ways to address it are having the costs of the process paid from marital assets or from the earning spouse's income, or dividing some of the family's undisputed assets early in the process.
As much as it pains me to say, I am going through the painful process of divorce. I'm struggling with the cost and I was hoping someone might have some advice on what options I might have.
Posted by: Divorcing Dad | December 06, 2011 at 04:58 AM
Costs of any process trouble those who care, and you do. Making sure the costs of the process are spread fairly according to war chest and income is important at every stage of the process, not just waiting to reapportion at the end because of the risk (however slight) of the process failing to reach completion. Thanks for the reminder (and for fuel for my blog :))
Posted by: Karen Robbins | November 08, 2011 at 08:20 PM