Collaborative Divorce in Virginia - Frequently Asked Questions
- Is a collaborative divorce less expensive than litigation?
- How long does the collaborative process take in contrast to litigation?
- How do I get my spouse or partner to participate in the collaborative process?
- How does this process focus on the future?
- Why can’t the two of us just sit down and work it out?
- My spouse and I are planning to get a divorce without lawyers because we believe the lawyers will turn it into a battle. Why would we want a collaborative divorce?
- Why is it important to choose a lawyer who is trained in the Collaborative Law Process?
- My spouse already has filed papers with the Court. Can we still choose the collaborative process to get our divorce?
- I am convinced a collaborative divorce is right for me, but I don’t believe my spouse would be a good participant. Can we still have a collaborative divorce?
- How are the different opinions of the value of an asset resolved in the Collaborative Process?
- Why is it necessary for the collaborative professionals to withdraw if any agreement is not reached?
- What is the difference between collaborative practice and mediation?
Is a collaborative divorce less expensive than litigation?
Collaborative divorce is usually less emotionally disruptive and financially expensive than litigation. By resolving issues in 4-way meetings with your lawyers, multiple court appearances are eliminated, as are some of the more painful conflicts that are often part of a traditional divorce. Litigation often requires each side to hire expensive experts to prepare documents and exhibits for use in court, to conduct depositions, and to issue subpoenas. By contrast, a collaborative divorce process involves the hiring of experts only as needed and as a way to assist the parties to bring resolution, instead of a means for gaining advantage over the other. Much of the cost of a collaborative family law case depends on how quickly you and your spouse or partner can reach an agreement on the issues.
How long does the collaborative process take in contrast to litigation?
It depends on the complexity of the case and how fast the parties can work. Some cases can be resolved in several meetings; others can take a year or more. No matter the length of a collaborative case, it is often concluded faster than litigation. In Virginia, you must be separated for at least one year before you can obtain a no-fault divorce. If you do not have children under the age of 18 and have a separation agreement, the time period is reduced to six months. If you were to litigate a no-fault divorce that involves the division of property, it frequently takes over a year from the date you file a complaint until you go to court to try a case. Collaborative law can be a faster way to bring resolution. And the parties control the process – not the court.
How do I get my spouse or partner to participate in the collaborative process?
Sometimes discussion is difficult, but it is essential for the process to work. Both parties need to be committed to the process for it to work. To begin the discussion, send your spouse or partner a link to this website or to the website of the International Association of Collaborative Professionals, www.collaborativepractice.com (Click on one of the articles here). You could also meet with an attorney trained in the collaborative practice who may be willing to provide additional information for you to share.
How does this process focus on the future?
Divorce is both an ending and a beginning. Collaborative Law helps each spouse anticipate their needs in moving forward. When children are involved, their future often becomes the number one priority. And as a more respectful, dignified process, it helps families transition to the next stage of their lives as smoothly as possible, given the strong emotions that are frequently involved.
Why can’t the two of us just sit down and work it out?
You can always try, but most clients simply find too difficult. Collaborative Law takes your willingness to sit down and talk and applies it to a well designed process. Collaborative Law delivers some amazing benefits beyond the resolution and granting of a divorce. The process builds on itself; as you and your spouse or partner communicates in an open setting, you reach agreements, which builds confidence that allows you to complete the process.
My spouse and I prefer to get a divorce without lawyers because we believe the lawyers will turn it into a battle. Why would we want a collaborative divorce?
Creating disagreements where they do not exist directly conflict with the goals of collaborative law. Lawyers trained in this process should not take such an approach. They are instead here to educate and advise parties in reaching fully informed agreements.
Why is it important to choose a lawyer who is trained in the Collaborative Law Process?
For this process to work, it is essential that each party’s lawyer understand and be committed to the principles of collaboration.
There are special skills collaborative lawyers must obtain. They must know how to guide discussions and manage conflict. They must be able to think creatively about options that may or may not be available to a court. Collaborative Law professionals have formal training in collaborative law and support continuing legal education, improved standards of practice, and training for professionals throughout their membership. A lawyer who does not practice collaborative law often can work cooperatively with a lawyer who does, but it is better to have professionals trained in the method to increase prospects for success.
There are many lawyers who are trained in the Charlottesville area. I have had a number of successful cases with collaborative professionals including Susan White, Annie Lee Jacobs, and Lynn Bradley.
My spouse has already filed papers with the court. Can we still choose the collaborative process to get our divorce?
Yes. Even though an action already may have been filed, you and your spouse may begin the collaborative process by signing what is called a “Collaborative Participation Agreement.” You will find on version of the agreement on this website.
I am convinced a collaborative divorce is right for me, but I do not believe my spouse would be a good participant. Can we still have a collaborative divorce?
It depends. Collaborative divorce is not for everyone. Sometimes litigation is best – and maybe the only way – to reach resolution. Collaborative divorce may not be appropriate in cases involving extreme domestic violence or extreme mental illness. It is not appropriate where there are issues of child abuse. Contact a collaborative professional to discuss your specific concerns.
How are different opinions of the value of property resolved in the Collaborative Process?
With litigation, each side employs experts as “hired guns” to testify, leaving the court to decide the value of property, whether it is real estate or personal property. In collaborative practice, experts are jointly hired to provide neutral opinions. They are not motivated by trying to “get more” for their client. They are working to get the most for everyone involved. After hearing the expert, the parties can better decide how to handle the value and distribution of property.
Why is it necessary for the Collaborative Professionals to withdraw if an agreement is not reached?
At the beginning of the process, the parties commit not to engage in litigation. They commit to an open and transparent process where they share information to work toward the best outcome for everyone involved. The open exchange of information that happens in the process gives the collaborative attorneys insights and information that might not be available in litigation. If either of you have to worry that your spouse’s attorney may be able to use the information you have openly shared in the collaborative process as part of a cross-examination in a litigation situation, the feelings of safety and the ability to engage in full disclosure that must be fostered in the collaborative process would be undermined. If an agreement cannot be reached collaboratively, the parties can move forward in litigation with new faces, procedures and goals. But the collaborative professionals need to remove themselves because they may have gained information that could give one party an advantage over the other in the litigation. In addition, any notes or information developed in the collaborative process cannot be used in the litigation. In this way, incentives exist to successfully complete the process.
What is the difference between collaborative practice and mediation?
Most collaborative divorce lawyers and their allied professionals are trained in mediation. Many provide mediation services. In mediation, the mediator cannot give either party legal advice or be an advocate for either side.
A collaborative divorce allows both clients to have lawyers present during the discussions. The attorneys will advance legal positions which everyone will hear at the same time. The attorneys will often give an opinion of what a court might or might not do – given the state of the law – in a certain situation. Sometimes the lawyers will agree and sometimes they will not. But in the collaborative process, everyone hears the same information at the same time so they can make decisions in a more educated and less emotional way. When there is agreement, a document is drafted by the lawyers, and reviewed and edited by both parties until everyone is satisfied. Your choice of mediation or collaborative practice should be made with professional advice.
If the parties want to do something different than what the court might rule, they can agree and move forward.