Introducing a new five-part series of revealing articles focusing on the collaborative approach to divorce. At the Law Office of Ronald L. Hendrix, we seek to educate and inform individuals who browse the internet in search of accurate information about the available divorce options. Our series on collaborative divorce is a must-read for anyone considering divorce. For more information visit our website.
When a couple is going through a divorce, one of the most important
initial components is to establish the assets that they have compiled together during
the marriage. In a traditional divorce,
when attorneys formally request this information from both parties, it is known
as the “discovery process”.
The full discovery process may include subpoenas, interrogatories,
depositions, and other motions regarding discovery and investigation and
presentation of financial matters. It
is not uncommon in a marriage for one spouse to handle all the finances, and
for the other to have little knowledge of the couple’s expenses, account balances,
investments, and debt. When entering
into a divorce, it is important that both parties have a clear picture of their
financial situation. To that end, the ultimate goal of the discovery effort is
to accurately and completely identify the assets of the parties so that they
may be divided in a fair and equitable manner.
In recent years there has been a trend in couples seeking alternate
approaches to their divorces. For
example, if you begin research you may become familiar with the term
“collaborative”. You may also learn
that the formal discovery process is almost non-existent in a collaborative
divorce. It is very likely that there
will be none of the aforementioned subpoenas, depositions, or marital
interrogatories or production of documents, as the collaborative process
depends upon the good faith participation by both parties. That is not to say
that no financial information is shared between parties, as each spouse will be
required to complete, accurately and in good faith, a Financial Disclosure
Statement.
Among attorneys who have experience in both collaborative and
traditional divorce, the idea of eliminating the discovery process is
unnerving. Unfortunately, a dishonest or
unscrupulous party could take advantage of the collaborative process, and no collaborative
attorney can guarantee that their client will, in fact, adhere to the good
faith undertakings that are made formally in writing at the start of the
collaborative process.
In my own experience, potential clients inquiring about collaborative
divorce have often done research and are aware of the lack of a formal
discovery process. Though infrequent, there
have also been times when I have felt in an initial consultation that the
concept of collaborative divorce is attractive to a party for this reason, and
that there may be the intent to hide funds.
In this situation, I am unable to proceed further or represent the
individual.
Situations such as these leave attorneys working on a collaborative case
with a feeling that they may not have a complete picture of the couples’
financial situation with which to make decisions and properly represent their
client. Worse yet, in an extreme
situation, this absence of critical information could open them up to the
possibility of a professional liability claim.
Should an attorney become suspicious during a collaborative case of the deceitful
intent of the opposing party, and therefore want to subpoena records, opposing
counsel can object and cite that the collaborative process does not include formal
discovery. There is no enforcement
process for elements of discovery in a collaborative divorce, and once there is
doubt between the parties and their attorneys, the collaborative process begins
to break down.
While the idea of working in good faith and with honesty through the
divorce process sounds ideal, it is important to be aware of the potential
downfalls that may be overlooked by a couple who feel the collaborative option is
best for their situation. The absence of
a formal discovery process in collaborative divorce should be seen as a concern
in marriages where disproportionate knowledge of the couple’s finances exists
between the parties, and this should be considered and discussed with an
attorney who deals in all approaches of divorce before making a final decision
on how to proceed.