Although divorce or the ending of a committed intimate relationship can be tumultuous and filled with uncertainty, the pathway can be peaceful instead of combative. Collaborative Divorce (also known as Collaborative Law), is an alternative to the adversarial nature of a divorce and the court process itself. Collaborative Law is a dispute resolution process, which has been around for the past three decades (since 1989). It involves a commitment by the parties and their lawyers to settle the divorce without going to court. As part of this commitment, parties and the Collaborative Divorce lawyers sign an Agreement saying they will be honest and transparent with one another, work together to identify interests and needs of both parties, and work together to resolve conflicts and create solutions. To sum it up, Collaborative Divorce promotes cooperation, communication, and problem-solving instead of the typical aggressive, accusatory, and hostile approach often associated with divorce.
In this blog, we will look at how couples navigate a common challenge (dividing an asset) through a traditional divorce, and then through a collaborative divorce. Let’s dive into the transformative powers of the Collaborative Law process and the positive outcomes it can bring during one of life’s most difficult transitions.
Dividing Assets
Before providing you with a made-up but common scenario, let’s establish a difference between community and separate property. Community property is assets, property, and/or debts acquired during marriage. When a marriage is ending, the court must determine how to fairly and equitably divide the community property. Separate property is assets, property, and/or debts acquired before marriage. When a marriage ends, generally the court does not divide separate property. Although, exceptions exist. For example, the court can divide separate property depending on several factors, such as, length of the marriage, is there enough community property to achieve a fair and equitable division, or did separate property become commingled with community property? Separate property becomes comingled with community property when the separate property origins, ownership, and movement cannot be shown through the use of a paper trail (known as “tracing”). A common example of commingling is when a person transfers monies from their separate property bank account to the joint or community bank account. If the bank statements, deposit, and/or transfer receipts aren’t kept, then separate property funds have become commingled with community property funds and are divided by the court.
Keeping separate and community property in mind, let’s look at the following example: one spouse (let’s say husband) has an automobile collection worth about $20,000. The cars were purchased before marriage, but the husband used $20,000 in community funds to fix them up. Now, the automobile collection is worth $60,000. In a traditional divorce, the wife’s lawyer could tell the wife the entire value of the automobile collection ($60,000) is divided between the parties (due to comingling). Or, at the very least, husband needs to reimburse the marital community the $20,000 he used in community funds to fix up his separate property asset. The fight over the asset may be inadvertently driven by the attorneys as each spouse’s attorney is pushing for what they think is fair and equitable for their client. Instead, of what is their client’s true desires, needs, and wants.
In a collaborative divorce, the couple make the decision about how their assets and debts are divided, not their lawyers. Their lawyers are present, but the lawyer’s role is not to fight for how the lawyers think the asset should be divided. Instead, the lawyers facilitate communication and help identify what is their client’s desires, needs, and wants. They work together with the couple to problem solve and figure out a joint solution that both parties are happy with. The wife may say she is not interested in husband’s automobile collection, and she doesn’t care about their value or the community funds used to fix them up. She knows it’s husband’s passion, and she doesn’t want to take it away from him in any way. If this same issue went to court, the couple would most likely spend tens of thousands in attorney’s fees fighting. They may even spend more money fighting about the asset than what it’s worth. Unfortunately, this type of “lose-lose” scenario often happens in a traditional divorce. In a collaborative divorce, the couple and their lawyers work together towards a mutual solution considering each person’s understanding of the other’s needs, desires, and wants. A collaborative divorce brings everyone together for a “win-win” scenario.
Is Collaborative Divorce Right For You?
If you and your partner have a desire to preserve a friendly relationship with one another; if you can find solutions through respectful, honest, and meaningful dialogue and by working together; if you both want to protect your children from the anger, fear, stress and chaos associated with divorce court; and if you both want control over how your property and assets are divided (instead of having the court decide for you), then consider a collaborative divorce. Remember, one of the key components of Collaborative Divorce is both parties agree they will not go to court. When the threat of fighting in court is removed, open and honest communication can begin. To learn more about our collaborative divorce services, contact Akiona Law, PLLC, to schedule your consultation.