The traditional divorce process can be incredibly stressful. Lengthy litigation, court costs, examination, and hostile feelings between spouses can affect all involved mentally, emotionally, and physically.
No matter how much you prepare for the process, its nature can quickly become very tiring. However, there are options available to avoid taking your separation to court. One such option is called collaborative divorce.
When spouses choose to pursue a collaborative divorce, they work out a settlement with family law attorneys while avoiding litigation. By making this agreement, they can work out every aspect of the divorce, such as division of property, alimony, and child support on their terms rather than have to make a case in court and have the result ultimately determined by a judge.
This allows for greater flexibility and, more importantly, avoids the additional negativity a divorce trial can bring. If you’re considering a collaborative divorce, here are some essential facts you need to know.
The Role of Attorneys
When both spouses agree to a collaborative divorce, they also agree not to pursue litigation against each other. That being the case, what role do attorneys play in the process?
Family law attorneys will help you in multiple ways. Though they aren’t making a legal argument on your behalf during a collaborative divorce, they can use their skills to work as your advocate while you and your spouse work on their settlement.
Both parties hire separate lawyers who help negotiate and iron out the agreement’s fine details so that there are no ambiguities. Unlike with mediators, spouses cannot share an attorney during this process.
However, you may find you’ll need additional help at various points. For example, when discussing how to separate property, it may be necessary to determine something’s monetary value. For this, you’d need an expert to give an accurate estimate. Family law attorneys have these connections in place and can bring additional resources into the discussions as necessary, saving you the trouble of having to seek them out on your own.
You Have Ultimate Flexibility
When a divorce goes to trial, the final terms have to follow state law. For example, when it comes to the division of property in divorce, California state law equally divides jointly-owned property between spouses.
The property you owned before the marriage remains yours, but anything that becomes shared may have its ownership questioned. Such items become commingling property, and if you can’t prove original ownership, it becomes a judge’s decision.
Collaborative divorce lets spouses customize the terms however they agree to, giving you greater flexibility regarding complicated issues like commingling property. It also removes uncertainty from the equation. The judge’s decision may go against what you hoped for or strike you as unfair. That’s not an issue with collaborative divorce.
While you may negotiate outside customary divorce laws, the goal should be to make both spouses satisfied with the final plan. It isn’t an opportunity to take everything you want. Doing so will stall (and potentially tank) the negotiations altogether. Be reasonable and expect some give and take.
You Don’t Have To Involve The Child
Divorcing parents have the additional complication of their child’s welfare to focus on. When a divorce goes to court, child custody disputes can be the most painful to litigate.
Doing so involves scrutinizing the parents, which may include questioning the child to learn more about how they feel and how their parents act. It can humiliate the parents and be scary for the child, and the ultimate custody decision could cause pain for anyone involved.
Thankfully, collaborative divorce allows you to establish all the terms of your separation, including child custody. With the help of their attorneys, spouses can shape a plan without involving their children at all. Of course, they can choose to involve them if they want, but it takes some of the stress of a divorce that children experience in either scenario.
Judges make child custody decisions based on what they believe to be in the child’s best interest. This can include any number of factors, including the employment and earnings of each parent, criminal history, and where they live.
When you and your spouse discuss child custody, the focus should still be on what’s best for your child. However, you can use whatever reasoning you like to make your conclusion and without having your life examined by a judge.
What If We Can’t Agree?
At the start of a collaborative divorce, you and your spouse sign a contract stating you won’t pursue litigation to resolve the divorce and instead work things out amongst yourself.
However, it may turn out that you hit roadblocks along the way, issues that no one is willing to concede. It can happen anywhere in the process, and if it does, that initial contract becomes void as you both take the matter to court.
When this happens, your current attorneys will have to remove themselves from the case, though they may help you find other representation for your divorce trial. Keep in mind that everything they worked on up to that point will be kept confidential.
Depending on how far along in the collaborative divorce process you were before changing to traditional divorce proceedings, you may have signed agreements relating to specific issues already, like how to divide the property. If you have, those agreements may still be binding and won’t be decided by a judge, helping to speed up the process.
Ultimately, if you and your spouse try and fail to finalize a collaborative divorce, the work you’ve done will still affect the final determinations.
A Better Way To Resolve Your Disputes
A divorce may be final, but what you experience during the process will remain with you for some time. One of the greatest boons of collaborative divorce is that it helps everyone stay civil as they prepare to separate.
The hard feelings that litigation can bring up have a better chance of never coming to fruition and influencing your words or actions. Besides keeping things peaceful, it may very well help the healing once your divorce is over.
Talk to Our Attorneys Today
If you need help understanding the complexities of California divorce laws or would like an experienced attorney to help you with your collaborative divorce, call on our professionals at Azemika & Azemika.
We are experts in Kern County family law who bring compassion and honesty to everything that we do. We’ll treat you and your family with respect and confidentiality as we help you achieve the best outcome possible. Contact us today to learn more about our expertise and what we can do to help you.