Faupel, Fraser & Fessler

Articles

COLLABORATIVE DIVORCE

By Marian L. Faupel, Esq.
Faupel & Associates

There are many attempts these days to avoid litigation.  Despite its warts, the American legal system (including the court system) is the best in the world.  For not much money in terms of filing fees, one can be heard by an elected judge (in most cases) who is absolutely impartial.  If you don’t like the result, you can usually appeal.  If the decision was wrong, it will usually be reversed.  The primary expense of litigation is attorney fees.

Collaborative divorce carries the cost of attorneys fees and not the protection of a court.  It urges people to use “joint” accountants and appraisers and be bound by their opinions, even if there are valid grounds for contesting those opinions.  The attorneys sign an agreement with their own client and with the other side as I understand promising not to represent the client if negotiations break down and litigation becomes necessary.  The usual loyalty an attorney feels for the client is compromised because even if the client wants that attorney by his/her side, the deal has been struck.  In that event, all the time and money spent with the first attorney is lost, and the client is expected to find another attorney, forge a new attorney/client relationship, and basically start all over again.

People need to think through the costs and benefits of collaborative divorce before signing up.  Divorces are not usually “love-in’s.”  The judges in and around Ann Arbor are well trained to spot issues and help parties resolve their differences.  They know how to identify high conflict divorces and contain them.  The judges have the right under a relatively new court rule to order people into mediation. Most attorneys have represent their clients well without a need for high conflict and ugliness.  If, however, there is a need to resort to a trial, parties may need the full range of rights and resources (including counsel of choice) that have served our nation so well for so long.  In fact, only 10% or so of family law cases proceed to trial with or without collaborative divorce.  It is not always easy to determine which cases will need a trial when they begin—so a collaborative divorce agreement is designing a process before even knowing if it is appropriate for the case.  In the experience of most attorneys, the existing process provides ample room for “collaboration” on various issues without compromising one’s right when collaboration becomes futile.

If you are considering a collaborative divorce, it would serve you well to consult with another attorney and consider the advantages and disadvantages of both approaches in your particular case.  Further, don’t expect that a collaborative divorce will necessarily be cheaper.  Because you will forfeit your attorney if you leave the process, you may become hostage to the process and spend longer there chasing a result you want then you would in proceeding to trial.