Going through the divorce or custody process in New York can be a stressful and overwhelming experience, especially if you have never been involved with the court system before.
You may have heard of something called collaborative law, but not be sure exactly what it is. Collaborative law involves resolving your disputes without litigation.
The purpose of collaborative law is to allow parties to reach solutions to their problems on their own, or with the guidance of professionals, instead of bringing the issues before a judge.
Benefits to collaborative law
Collaborative law has become more popular in recent years for many reasons. It is typically cheaper and more efficient than traditional litigation.
Additionally, parties often report feeling more satisfied and happier with the outcome of their situation when using collaborative law. The reason for that may be because they feel like they had some control over the outcome, rather than being subject to the orders of a judge.
While the collaborative law process is somewhat less formal than courtroom litigation, there are some rules and practices that must be followed.
The collaborative law agreement
Both you and your spouse or co-parent must agree to use collaborative law. You must sign an agreement stating that you both agree to participate in the collaborative law process.
This agreement commonly contains language that you agree to use good faith efforts when negotiating your settlement. This means you should be honest and avoid hiding or concealing information or documents that are necessary for a fair resolution.
Can I use an attorney?
Both of you are represented by attorneys during the collaborative process. Your attorneys represent your best interests and advocate for an outcome in your favor, while advising you on the advantages and disadvantages of potential solutions.
The collaborative process itself involves a meeting, or series of meetings, where you and your spouse or co-parent try to negotiate a solution to your divorce or custody matter.
Some parts of the collaborative process resemble courtroom litigation. For example, if you are divorcing, you will exchange information about your assets and debts so you can negotiate property division. This is similar to the discovery process during litigation.
Experts such appraisers, psychologists or other professionals can be hired as part of the collaborative law process to provide their insight or recommendations on different issues.
What happens if collaborative law doesn’t work?
Despite its benefits, the collaborative law process is not always successful. You always have the option to then take your case to court and begin traditional litigation.
However, usually the attorney who represents you in the collaborative process cannot represent you in your litigation and you must find another attorney. The same rule generally applies to any experts or professionals who are engaged as part of the collaborative process.
When collaborative law is not appropriate
Additionally, there are situations where collaborative law is not the best option, and you are better off heading to the courtroom.
If factors such as domestic violence or substance abuse are present, collaborative law can sometimes do more harm than good. Victims of domestic violence might worry about their abuser using the less formal setting to manipulate the situation to their advantage.
Likewise, if you are divorcing and your spouse is a habitual liar who you do not trust to provide honest and accurate information about their finances, you could be better off litigating.
You might not know right away if collaborative law is right for you. Talking about your situation with a trusted professional can help you decide on the right course.