Traditional vs. Collaborative Approaches to the Divorce Process

Traditional divorces, which readers may be mainly familiar with through movies and TV series, usually involve litigation and a high degree of court intervention, ultimately ending in a trial.

This process can be emotionally and financially draining. Fortunately, only a tiny percentage of divorces in Maine proceed like this nowadays. The vast majority of divorces are resolved either by:

1. A do-it-yourself settlement, which may be possible in amicable splits with no children and few assets to divide (not advisable in most complex cases, though).
2. A collaborative divorce that involves negotiation between lawyers, mediation, or other alternative dispute resolution methods, reducing the need for court intervention.

Increasingly in Maine, the collaborative divorce approach is replacing the traditional approach, due to the availability of no-fault divorces and the many benefits of both parties working towards a mutually agreeable solution rather than a judge deciding.

Let’s look at the many pros and cons of the collaborative and traditional divorce approaches.

The traditional approach to divorce involves filing legal documents, attending court hearings, and potentially presenting evidence and arguments with the help of a divorce attorney.

Unless the spouses can settle through mediation or out of court, a trial will be necessary. A judge will need to make legally binding decisions, issuing orders concerning property division, child custody and visitation, spousal support, and any other key outstanding matters.

This traditional approach is highly formal, with a series of set legal procedures. Timelines are dependent on the caseload at the local court and proceedings are a matter of public record. Personal and financial information that spouses might prefer to keep private will be released. Spouses also lose control of the decision-making process, asking a judge to decide.

Traditional divorce may also involve a requirement to prove fault, in the case of at-fault divorces. This can result in a confrontational process, with each party focused on protecting their interests and the outcome resulting in a “winner” and a “loser”. The additional tension and stress involved with this approach can be difficult for both spouses and children from the marriage.

Some elements of a collaborative divorce remain the same as the traditional approach. Spouses are still often represented by attorneys (collaborative lawyers rather than trial lawyers) and divorce paperwork must still be filed with the court.

The parties may agree not to litigate at the outset of the collaborative divorce process and it is usually in both parties’ interests to avoid “going to court”. If the case does end up in court, the collaborative divorce attorneys cannot represent their clients. New lawyers will need to be appointed, at extra expense.

The spouses and their lawyers meet together informally and work towards mutually beneficial outcomes, often consulting financial advisors, mental health professionals, and other relevant advisors during the process.

One of the advantages of a traditional divorce process is that people understand the process of ending up at trial, having had prior exposure through movies and the media. However, it should be noted that few divorces end up like this and most divorces are far more mundane matters than the ones that make the headlines.

In traditional divorces, the spouses do not even have to communicate directly, which may be a benefit if conflict levels are high. They must follow formal court procedures and emotional outbursts are not tolerated by the judge. The outcome may also be considered more “set in stone”, as the judge will make a legally binding decision one way or another.

The advantages of a collaborative divorce are more numerous, including the following:

• Less conflict and stress.
• Spouses remain in control of decisions.
• Relationships can be better maintained for the benefit of the children.
• Communication between the spouses can remain intact.
• Common ground can be sought so that mutually beneficial outcomes are found.
• Matters remain private and confidential.
• The process is usually less expensive and time-consuming than litigation.
• There is no “winner” or “loser”.
• More flexible and less formal than litigation.
• More creative options can be explored than with a traditional approach.

Collaborative divorces, like all divorces, must still involve the Maine Courts. However, once the divorce papers are filed and served on the other spouse, the spouses may not need to return to court until a final uncontested hearing before the judge.

Lawyers can file the signed settlement agreement and the judge may be able to simply approve the dissolution of the marriage and issue the Divorce Decree.

Traditional divorces are driven by the court, and the financial and emotional costs as the couple prepares for a trial can be significant. This can affect the entire family, especially if children are caught in the middle of a custody battle and a high-conflict situation.

Couples lose the element of control with a traditional divorce and instead, ask a judge to decide. The other main disadvantages of a traditional divorce include:

• Highly formal process and can be intimidating for spouses.
• Matters become part of the public record.
• Generally time-consuming and expensive.
• Judges may not make the fairest or most appropriate decisions due to lack of knowledge of the facts or mistakes.
• Court-ordered agreements are less likely to be complied with than mutually-agreed divorce terms.

Sometimes, chamber conferences with the Judge are conducted in Maine divorce litigation. These can involve negotiations between attorneys in private, reducing the transparency of the process for spouses.

The main disadvantage of a collaborative divorce is that it requires both spouses to make a commitment to communicate and negotiate, which can be challenging during the emotional fallout of a separation.

Making lucid decisions in your best interests (and in the best interests of the children) can be challenging at this time, especially if the couple separates on bad terms or conflict develops after they part.

With the aid of an experienced divorce lawyer, the process becomes easier. A collaborative divorce attorney can remove the emotion from decisions, while protecting your rights and interests. This helps ensure that you don’t settle for anything less than you deserve from the marriage.

Disentangling one’s life from a relationship can be complex, especially after long marriages where finances have become largely commingled. Some people try to handle the property division process themselves and end up with less than they are entitled to, potentially harming their future financial positions.

Although collaborative divorces do not guarantee a peaceful divorce process, skilled collaborative divorce lawyers will seek ways to settle any disputes that arise amicably rather than heading to court. Most times, spouses see the benefits of resolving issues without court intervention.

Bear in mind, however, that if the collaborative divorce approach doesn’t work, which is rare but can happen, you and your spouse will need to start again from scratch with different lawyers, with additional delays and expense as you commence litigation.

For legal assistance with any aspect of divorce in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.