Is Collaborative Divorce an Option for You?
- 01 31, 2019
- Irwin & Irwin
The concept of collaborative divorce may sound like an oxymoron, especially after difficulties collaborating during your marriage. Many divorcing Californians are tired of the argumentative back and forth before divorce proceedings even begin. A collaborative divorce, however, doesn’t mean you and your former spouse have to amicably agree on all areas of separation. You can agree on little to nothing regarding your divorce, but a California collaborative divorce may still be right for you. Working with an Orange County collaborative divorce attorney can do the following:
- Minimize the financial impact of your divorce,
- Reduce stress,
- Resolve issues without judicial intervention,
- Eliminate the need to go to court, saving time and frustration, and
- Allow for a more thorough, tailored, and lasting divorce agreement.
Whether you’re prepared to work amicably with your former partner or know your divorce will be difficult, an Orange County collaborative divorce is a viable solution for many families.
Overview of California Divorce Law
Divorce law is a product of California’s family and domestic relations statutes in combination with years of case law applying the same. These statutes and cases set forth the rights of divorcing couples in California in the event they cannot agree on areas such as:
- Property distribution,
- Child custody and visitation,
- Child rearing arrangements, such as education, religion, and healthcare,
- Spousal support,
- The homestead,
- Family relationships,
- College education and wedding agreements, and
California is a community property state, which means that “except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” There is a presumption in California, therefore, that community property is owned in equal shares, i.e., 50/50. This may be the default law, but it can be modified by agreement. For example, if a couple owns two cars purchased during the marriage, each spouse owns half of each car. They may wish to each take a car instead, which is not the default presumption in California. This is where collaborative divorce proceedings play an important role.
Especially with complex estates involving social security, pension benefits, and mixed property, agreeing on property distribution while understanding your legal rights can save you substantial time and expense. This often leaves the marital estate in a better position for financial distribution, benefiting both parties.
What is a California “Collaborative Divorce?”
Divorcing Californian couples have three main options to facilitate their divorces: judicial intervention, mediation/arbitration, and collaborative divorce. You may use a combination of these options, but collaborative divorce is often the best place to start. A judge or mediator may make decisions and recommendations contrary to the will of the parties during judicial proceedings resulting in years of costly litigation and appeals. You often give them this power when you don’t come to a divorce agreement. You should consult a qualified Orange County divorce attorney to determine what option is best for you, but unlike judicial intervention and mediation/arbitration, there is no “neutral” party in a collaborative divorce.
Collaborative divorce is a product of contract law. Each spouse will hire a qualified California collaborative divorce lawyer and meet with him or her separately. The two attorneys will then meet to begin negotiating a divorce or legal separation agreement addressing many of the above issues. All four parties may also meet together to come to a mutual resolution of claims. Your collaborative divorce attorney isn’t a neutral party, and he or she is there to fight for your rights while encouraging settlement. All parties must agree on the final divorce resolution.
Benefits and Limitations of a Collaborative Divorce in California
Collaborative divorce may work best for spouses who don’t share children. This is because the court, not the parties, must ultimately determine what’s in the “best interest” of your shared children. This includes matters of child support, custody, and visitation. While judges encourage parties to come to a mutual agreement regarding these matters, he or she must approve any child-related agreements by analyzing the “best interest” of the children. These factors include:
- Any physical, mental, or emotional abuse inflicted on the child by a spouse,
- The nature of a parent’s current dating/engagement relationships,
- The age of the child,
- The relationship between the parent and child,
- Any special needs,
- The parent’s ability to financially, physically, and emotionally care for children,
- History of substance abuse, including alcohol, and
- The child’s school, friends, family, community, and social ties,
Further, child support is measured based on certain state-based guidelines. The court may not allow you to take less than a spouse owes you if these limitations are not in your children’s best interest.
One of the main advantages of hiring a qualified Orange County collaborative divorce attorney is that he or she is familiar with the legal guidelines and case law involving child custody and divorce. Your collaborative divorce lawyer can work to draft an agreement he or she believes is in compliance with California law and judicial decisions. This reduces the likelihood that your collaborative divorce agreement will be changed or modified by the court without your assent or permission. Mediation with a non-attorney doesn’t afford these legal safeguards.
Protections Afforded by a Collaborative Divorce Attorney
The collaborative divorce lawyer you hire to handle your California collaborative divorce has a vested interest in avoiding litigation. Your attorneys may ask you to sign a non-litigation agreement, and both collaborative divorce lawyers will withdraw from representation if you’re unable to come to an agreement. This encourages the attorneys and parties to work together to seek a mutual resolution of divorce claims without the added threat of litigation. The objective of California collaborative divorce attorneys is to help you resolve potential divorce-related claims out of court. This is different than the traditional attorney-client process whereby an attorney will normally attempt to settle a claim by threatening costly litigation. A California collaborative divorce attorney cannot do this, which encourages cooperation with the benefit of having a professionally negotiated agreement.