Visiting an attorney to get your estate plan done is one New Year's resolution that you should definitely keep. None of us knows whether or when we may find ourselves seriously injured or sick.
In 2012 the Ohio legislature passed the Ohio Collaborative Family Law Act. Collaborative divorce had existed in Ohio prior to the statute, but the Act has been useful in specifically creating and allowing collaborative divorces in Ohio, specifying how they are to be performed, and mandating certain certification requirements for attorneys to practice in collaborative law. Traditionally in Ohio there have been two legal mechanisms to end a marriage, dissolution and divorce (for an outline of the differences between dissolution and divorce, see our previous article). This is still the case, but within the category of dissolutions is a relatively new legal process usually referred to as “Collaborative Divorce.” This article will briefly go over what collaborative divorce is and what its benefits and drawbacks are.
What is Collaborative Divorce?
Collaborative “divorce” is actually a misnomer, because in a collaborative divorce, no one actually files for divorce. In Ohio, parties to a successful collaborative case actually culminate in a dissolution of marriage. That is to say that all the issues pertaining to ending the marriage must be agreed upon by both parties prior to filing with the court. Custody, child support, spousal support (alimony), property dispersal, etc. all have to be settled and agreed upon by both parties. But what are the differences between a collaborative case and a normal dissolution?
First, a collaborative divorce has to have two attorneys. Second, the parties and their attorneys enter into a “Collaborative Agreement.” This collaborative agreement is a contract entered into by all signatories that pledges them to engage in the collaborative process with a forthright, collaborative, and low conflict attitude, but also limits the scope of the attorney’s representation. Most notably, if the collaborative process is not successful, the attorneys must withdraw from the case, and the parties would have to seek new representation to proceed with a regular dissolution or divorce. Frequently when normal dissolution matters are not successful, the attorney that was unsuccessful in negotiating a dissolution settlement will represent the client in the subsequent divorce process. This cannot happen in a collaborative divorce. Third, collaborative divorces often have a neutral financial expert and/or child expert to help craft a fair and equitable agreement for both parties.
What are the Benefits?
There are two main benefits to the collaborative process. First, it provides a real financial incentive for the parties to come to agreement. Parties that agree to a collaborative divorce know that if they do not put forth a good faith effort to come to a reasonable agreement for all involved, they are going to be hit in the pocket book. Second, the whole attitude of a collaborative divorce is different. Both parties and their attorneys, through the collaborative agreement, are committed to being cooperative, low conflict, and open in their disclosures. This can take away much of the misery spouses experience in traditional dissolutions and divorces. Collaborative parties know and accept that their marriage is going to end, and that it is in the best interests of them both (and their kids if they have them), to come to an amicable and equitable agreement.
What are the Drawbacks?
The most obvious drawback to a collaborative divorce is that should it be unsuccessful, the parties likely paid a large amount of money with little to show for it. In any dissolution, everyone has to agree to everything. There is no way to force either party to accept any particular part of the agreement. Clients frequently come to us thinking we can just file a dissolution and the court will just sort out the parts that they do not see eye to eye on. There is a judicial mechanism that works this way. It is divorce, and as stated earlier, collaborative divorces are actually dissolutions, where everything has to be agreed upon.
Collaborative divorces are not for everyone. In the words of one of my favorite magistrates “If everyone could agree, I’d be out of a job.” Parties looking to end a marriage frequently have genuine disagreements about things like what assets are valued, which and what portion of assets are “marital,” and what is in the best interests of their children. Other parties have endured wrongs from the other or just have personalities that make cooperation impossible. However many spouses realize that their marriage has come to an end, and wish to go through the process of ending it with as little pain, worry, and conflict as possible. For clients like these (who have like-minded spouses), collaborative divorce is a helpful mechanism to put them in the best place moving forward.