What is the Difference Between Collaborative Divorce and Traditional Divorce?

Divorce is, by definition, a life-changing process. No one goes into marriage planning to divorce, but if you find yourself at that crossroads, you want to end your marriage in the way that is least damaging: for you, your finances, and especially your children.

For a long time, the only option for divorce was litigation; that’s what most people mean when they talk about “traditional divorce.” In recent years, other choices have emerged. These alternatives to litigation, collectively referred to as “alternative dispute resolution,” or ADR, include Collaborative Divorce.

Collaborative Divorce is unfamiliar to most people; while exact numbers are hard to come by, it’s estimated that fewer than 2% of divorces are through the Collaborative process. That may be because Collaborative Divorce requires attorneys to have special training in the process.

That said, the great majority of people who go through Collaborative Divorce report satisfaction with both the process and the outcome. If you are considering ending your marriage, it’s worth learning the difference between Collaborative Divorce and traditional divorce. Here’s what you need to know to make an informed decision.

Collaborative Divorce vs. Traditional Divorce: The Processes

A traditional divorce is a lawsuit: one spouse (the Petitioner) files a Petition for Divorce in the district court, starting the process. This triggers a Domestic Relations Injunction (DRI), which orders the parties not to take certain actions, like hiding or transferring assets or cancelling insurance.

The other spouse (the Respondent) is served with the Petition and has a chance to respond. The parties are required to exchange financial information, and the court may issue temporary orders regarding issues like child custody, alimony, or use of the marital home during the divorce.

In Utah, if the Respondent files an Answer to the Petition for divorce and there are still issues in dispute, the couple is required to go through mediation to attempt to reach settlement. If mediation is not successful, the parties go through discovery, which allows them to gather evidence from each other. The court may hold pre-trial conferences to encourage settlement, and there may also be hearings to resolve motions during the case. Settlement can happen at any time during the process, but if the parties still can’t reach agreement on all disputed issues in their divorce, the case must go to trial, where the judge decides all unresolved issues in the case.

Collaborative Divorce, on the other hand, is an out-of-court process. Unlike traditional divorce, which one spouse can start unilaterally, both spouses must be on board for the Collaborative Divorce process to move forward. The spouses select attorneys who are trained in the process, and they sign a participation agreement, which sets the ground rules for the divorce process.

Spouses agree to work together in good faith to negotiate a fair, mutually agreeable settlement. They also pledge to communicate transparently and honestly. Should negotiations break down and the parties decide to pursue a traditional divorce, they agree not to use information learned in the Collaborative process against each other, and they must use different attorneys for litigation.

These agreements foster an atmosphere in which communication can flourish, because spouses don’t have to worry that their words (for instance, an apology for wronging the other spouse) will be used against them in court.

In Collaborative Divorce, spouses move toward settlement in a series of “four-way” meetings with their attorneys. Meetings may also include other professionals, such as financial neutrals, divorce coaches, or child specialists to provide support and guidance in their respective areas of focus.

The process unfolds on the spouses’ timetable. When all disputed issues have been resolved, they and their attorneys sign a settlement agreement which is filed with the court. The divorce is then finalized, with little or no court involvement.

Pros and Cons of Divorce Processes

If Collaborative Divorce sounds like a more peaceful, dignified way to divorce, that’s because it can be. But it’s not the best process for everyone. It’s important to understand the pros and cons of divorce through both the traditional divorce process and Collaborative Divorce.

Advantages and Disadvantages of Collaborative Divorce

There are many benefits to Collaborative Divorce, including:

• More privacy and confidentiality
• Greater control over the process, including the timeline and scheduling
• Greater control over the outcome: spouses know their family best and can reach creative resolutions that work for their unique needs
• Focus on respect, cooperation, and open communication, which reduces stress and conflict and promotes a healthier co-parenting relationship
• Parties have access to trained professionals not just for legal issues, but to help with financial, emotional, and parenting issues.
• Often quicker and less expensive than traditional divorce, because there is no discovery process or need to prepare for trial
• Little to no time spent in court

Collaborative Divorce also has downsides to consider, such as:

• It only works if both spouses commit to be honest and transparent, and to negotiate in good faith.
• It can be difficult to find attorneys who are trained in the Collaborative process.
• There’s no way to get a DRI to prevent the transfer of assets, or temporary court orders for support or custody during the divorce process
• If the process breaks down before settlement, attorneys must withdraw and both spouses must find new attorneys before starting the traditional divorce process

While Collaborative Divorce does not require that the parties be amicable to be successful, there are some situations in which the process is a poor fit. These include marriages in which there is a power imbalance or domestic violence, making it difficult for the parties to negotiate on even footing. Situations in which the spouses do not trust each other to be honest or fair are also not a good fit for this process.

Advantages and Disadvantages of Traditional Divorce

Litigated divorce gets a bad rap, sometimes deservedly so, but it also has positive aspects, like:

• Judicial oversight of the process, including the availability of temporary orders to establish the terms of the parties’ relationship while the divorce is pending; especially helpful in high-conflict situations
• A structured process with deadlines to keep the case moving forward
• The availability of discovery tools like depositions and subpoenas if one spouse may be hiding information or assets
• Safeguards for victims of domestic violence
• Spouses can “have their day in court”

There are, of course, also disadvantages to litigating a divorce:

• The process is, by nature, adversarial, which makes the process more stressful and can damage any goodwill between spouses, making future co-parenting difficult
• Litigation often takes longer due to hearings, the discovery process, and trial preparation, which means it is often more costly financially
• Court orders are public, and courtroom proceedings are generally open to the public, which is a problem if privacy is a priority
• Less control of not only the process, but the outcome: unless spouses reach settlement before trial, a judge makes important decisions about their family

Even with these issues, traditional divorce may make more sense for some couples, especially those in which one spouse doesn’t want the divorce or is unwilling to cooperate, where there are insurmountable trust issues, or where one spouse has severe mental health issues, substance abuse issues, or a history of violence toward the other spouse.

Deciding How to Divorce in Utah

Choosing the right divorce process for you sets you up for success in your next chapter. The experienced divorce attorneys at Barton Wood can help. To get the support and guidance you need, call 801-326-8300 or contact us online to schedule a consultation.