On Family Law: Divorcing without going to court

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Part 2 of a two-part series

Mary Ann R. Bermester

  They sign a contract upfront that commits to transparency about the finances, to honesty about what’s best for the children and both spouses, and to empower the couple to decide the outcome without resorting to a judge making the decisions. A team of professionals is assembled to assist the couple consisting of a lawyer for each spouse, a neutral financial analyst and a neutral mental health professional, sometimes called a “divorce coach.” Sometimes a parenting coach is added to the team if the parents are fighting over the children.  These professionals all have to be trained in the Collaborative divorce process and be current members of the New Mexico Collaborative Practice Group. If the collaborative process fails, then the lawyers are disqualified from representing the spouses in court, and the couple has to find new lawyers to represent them in litigation. The “carrot” is privacy and control of the negotiations through the team effort. The “stick” is losing the team if one party pulls the plug and the case ends up in court. That’s a strong incentive to stay the course.


Benefits of Collaborative Divorce

A collaborative divorce can have many advantages over a court-based divorce:

* The ability to move on with your life as quickly as you and your spouse agree, rather than waiting for a court date.

* The opportunity to be in control of your own future without regard to who has the most assertive attorney.

* The ability to decide custody and financial issues jointly with long-term child development and financial advice.

* The power to move forward with your lives with a focus on the future.

* The chance to save money because a collaborative divorce can cost less than a court divorce while providing enhanced value.

* The protection of privacy since the details of your divorce will be between you and your spouse, rather than being aired publicly at a court hearing or trial.

* The primary focus on your children when making long-term plans.

* The focus on a mutually-beneficial outcome through a financial settlement that takes into account the well-being of both parties.

* The intention to remain on good terms with your former spouse by reducing animosity when making decisions regarding your children.

* The choice to prevent even more pain and anguish, which can be the result of a courtroom battle.

How Collaborative Divorce Works

Collaborative divorce allows couples to resolve their conflicts through a series of constructive meetings between the two spouses and the professional team. Successful collaborative divorce requires both spouses to be willing to work together, to turn over the financial records, to be honest about what makes sense for the children, and to be reasonable about each spouse’s future financial needs. This can be a tall order if one spouse feels betrayed and just wants to lash out at the other spouse. That’s where the mental health professional comes in to help both sides understand and work through the anger, hurt, sadness and frustration of the death of the marriage. In my experience, about 90 percent of a divorce is emotional and only 10 percent involves legal issues, but until the emotional component is addressed, reasonable and rational settlement negotiations get stalled.  

The process for a collaborative divorce has several steps: 

Beginning the Process & Evaluating Your Options: Don’t begin the divorce process blindly. If you and your spouse have decided to call it quits, consider collaborative divorce as an option and consult with an experienced divorce attorney to make sure you understand the options available to you. 

Negotiation: Negotiation is key to collaborative divorce. One of the many benefits of having a diverse team of skilled professionals on your side is that you can factor in their expertise and knowledge when negotiating the terms of your split, such as property division, child custody and child support, and other matters which will directly affect your family’s future and finances for years to come. 

Agreements: Much of the purpose of collaborative divorce is to help couples reach agreements that both spouses consider satisfactory and that benefit all parties involved. When it comes to legal agreements such as Marital Settlement Agreements and Parenting Plans, collaborative divorce can prove especially valuable since it allows couples to create such agreements without having to appear in court or go before a judge. 

Implementation of Terms: After deciding on the terms of divorce during collaboration, couples and families must then fulfill the terms on which they have agreed. This can be difficult, even though both spouses were involved in forging the agreements in question. 

How much does it cost?

The idea of having to pay for two lawyers, a financial expert, a divorce coach and a parenting coach sounds exorbitant. In reality, you’re getting the right person with the right expertise to deal with a particular issue. Think about it. Why pay your lawyer $300 - $400 per hour to sift through tax returns, bank statements, and investment records when the financial expert can do it more efficiently for a lot less money, and summarize the relevant information for your attorney. 

If this path sounds and feels comfortable for you, then talk to a collaborative lawyer, divorce coach, parenting coach or financial professional about your situation to help you make the best decision for you and your family. See nmcollaborativedivorce.org. 

Mary Ann R. Burmester has practiced family law for more than 30 years. She serves on the Board of Directors of the New Mexico Family Law Section and the New Mexico Collaborate Practice Group, is a Fellow of the American Academy of Matrimonial Lawyers, and is happily married to Gary D. Hagermann. With offices in Santa Fe and Albuquerque, she can be reached at 505-881-2566. For more information see nmdivorcecustody.com.