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Cost Differences in Litigation v. Collaborative Divorce

There are several different types of costs when a couple is divorcing: financial, emotional and relational. I have been witness to the phenomenon of how emotional and relational costs increase the financial outlay when a couple is divorcing, in turn depleting the family's resources. During my twenty-five (25) years of practice, I have watched the pain that couples go through - emotionally, relationally and financially - and more often than not, that toll is much higher in a litigation case versus a Collaborative case. When I looked at the difference in the legal fees in two of our firm's cases with somewhat similar facts, I was not surprised to see that the fees in the litigated case were thirty-three percent (33%) higher than the fees in the Collaborative divorce case.

The threads of similarity started with complex marital estates and, to further add to the adversity, the families were wracked with highly dysfunctional relationships, not only between the spouses but also with the adult children. Yes, adult children can and often do play a role in the process. Another common theme was that one of the spouses had moved on to another relationship, leaving the other spouse feeling alone and vulnerable, resulting in a feeling of contempt. These feelings, unfortunately, can and often do drive the financial costs of a divorce process. The need to "get" the other spouse often clouds the logic and judgment of the "left behind" spouse.

While the feelings of hurt are similar when there is infidelity, this issue may play out very differently in a Collaborative case versus a litigation case. In a Collaborative case the professionals help to create a safe space for the couple to address their issues and to do their best to work through them. In a litigated case it is nearly impossible to create a safe space; rather, it is a breeding ground of anger and fear. In our litigated case, the client, rather than working through his painful issues as a result of the infidelity, focused instead on the cheating spouse and how to "get" her, demanding that a myriad of subpoenas be issued in an attempt to find some proverbial smoking gun. When no damning evidence appeared, this need to fight continued; the need to punish was pervasive. The only person that was punished was our client, not the other spouse, and the legal fees continued to mount.

The clients are at the center of the process in a Collaborative divorce. Together, the spouses, with the professional guidance of attorneys, coaches and financial neutrals, direct the process and take an active part in the meetings. The litigation process is not client-centered; the attorneys meet with the Judge and discuss the issues. Clients are rarely part of this discussion. Of course, the client has input in the final settlement in a litigated case, unless the Court is solely responsible for making the decisions.

As both matters were wrapping up, I saw that the couple in the Collaborative process was able to discuss their issues and frustrations with each other in an open and respectful manner. In the litigated process, it was extremely difficult for the couple to even sit in the same room. Not only were the financial costs far greater in the litigated case, the emotional and relational costs increased and more than likely these costs will linger for a long time, delaying the healing process of grieving the loss of a marriage.

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