In theory, collaborative divorce sounds ideal. What is “collaborative divorce”? The two spouses discuss together with their lawyers, mental health professional, financial specialist, and sometimes a child psychologist or development specialist to “collaborate” toward a peaceful, non-adversarial resolution of the issues that have arisen in the divorce action. Everyone agrees not to go to court and signs a contract that forces them to start over with new counsel (meaning that the lawyers that they utilized in the collaborative divorce process cannot be the lawyers for either party if litigation becomes necessary).
But how well does collaborative divorce work in practice in general? Collaborative divorce is rarely the wise choice. It is expensive, bloated, overly reliant on the flawed premise that litigation is inherently bad, and misplaces its trust in social science.
A traditional divorce case is already expensive, but collaborative divorce can easily double or triple that cost. Why? Because instead of each party hiring his/her own lawyer, in addition to each of them retaining a lawyer to represent each of them, they’re now jointly hiring (and jointly paying for) more professionals. These additional professionals can include a couples/marital kind of therapist, a financial advisor, and sometimes a child psychologist (if the parties have minor children and need to address issues of custody and parent-time). Some collaborative divorce processes also include a “divorce coach”*—all of whom bill hourly and often don’t operate efficiently or all that competently. This is a classic case of “too many cooks spoil the broth.” Scheduling a time or times when all of the participants can meet together is a headache. Decision-making grinds to a halt when every professional insists on being heard, even on matters outside their expertise. And often therapists, financial planners, child psychologists, and/or divorce coaches will “pick sides” in the divorce negotiations instead of offering neutral observations and advice.
The philosophical foundation of collaborative divorce is misguided. It’s part of a broader trend of importing social science methods into family law—under the guise of making it more “therapeutic.” But what’s lost in this approach is the role of law itself: resolving conflict through principles, rules, precedent, and clear decision-making authority. But family law is not therapy. And let’s be frank: if the parties were both emotionally stable, communicative, and able to compromise effectively, they likely wouldn’t be divorcing in the first place. To believe they could work out their differences in divorce by “collaborating” would be unrealistic for most people. Sometimes arguments need to be settled by a judge (or someone acting in that same kind of capacity, such as an arbitrator). Collaborative divorce creates a vacuum of authority to rule on and determine the outcome of the dispute—no judge, no structure, no real accountability.
If the collaborative divorce process does not result in a settlement agreement, then the divorcing parties must start over with new lawyers. Much of the time, money, and emotional effort poured into “collaboration” is wasted.
I’ve seen firsthand how collaborative divorce can drag out proceedings, inflate costs, and leave clients more exhausted than empowered. The court system, though imperfect, has the tools to resolve acrimonious disputes (not well, but usually more effectively than collaborative divorce does).
Collaborative divorce might seem appealing in concept, but in reality, it’s a time- and money-wasting process.
If you’re considering divorce, collaboration is best reserved for the attitude you bring to mediation or settlement negotiations. Odds are that a good lawyer and a fair judge can do far more for you than a team of well-meaning, overpaid specialists will.
Utah Family Law, LC | divorceutah.com | 801-466-9277
*A divorce coach is “a trained professional who provides support and guidance during divorce. They help individuals clarify their goals, interests, and outcomes related to divorce. Divorce coaches do not provide legal, settlement, or financial advice. They specialize in divorce, co-parenting, child development, and related issues.” (Psychology Today)
