A Divorce Story - The Trouble with Court, and Why Collaborative Divorce Works.
Imagine being married for six years to the man of your dreams. The two of you enjoy the same movies, similar music, the same sports teams, you have a great house and a tight knit circle of friends who you enjoy spending time with. This is a relationship that you feel secure and safe in. While you talked about having children, it hasn’t happened yet. After all, the two of you are busy working hand-in-hand to grow your business and build a life together. All is right with the world. Then, one day after work, your husband tells you that he is not happy in the marriage. The pressures of the business and the thoughts of starting a family are too much for him. He wants a divorce. You are confused, hurt, feeling vulnerable and insecure about your future. After seeking assistance to address the emotional aspects of this shock, you must now consider how the divorce process will work and what your future may look like, once the divorce is finalized.
This is the true story of Marie and her husband Bill (names changed for confidentiality purposes). You would think, upon hearing of the fairly limited assets, no retirement accounts, no children, one house and one business, the divorce itself should be fairly uncomplicated and not very time consuming. The court can help them wrap this up in short order. But you would be wrong. After being served with the divorce papers, Marie hired an attorney to help her come to settlement with Bill’s attorney; dividing the house and the business and allowing the couple to move on with their separate lives. It is now eight years later and there is no settlement and no divorce judgment in sight. Yes, the divorce is lasting longer than the actual marriage.
How can this be? A six-year marriage, an eight-year (and counting) divorce, with four judges already assigned to the case. What could they possibly be fighting over?
You guessed it - money.
The cash business that the two started together is at the heart of the battle. The business is in Bill’s name alone, yet Marie was instrumental in getting the business off the ground and she was part of the day-to-day operations as well. Bill used some inheritance money to start the business while Marie used some of her liquidated retirement account from a previous job. Bill stated that the annual revenue from the business was about $150,000 and Marie says that it was really well over $550,000 annually. This point should have been easy enough to address. The two could hire an expert to come and evaluate the business’ profits, debts and worth, and then Marie and Bill could have divided the business appropriately.
Yet, like most things in life, it has not proven to be that simple.
First, the two could not come to an agreement on what forensic accountant to hire. So, after several months of motion practice, the court finally decided on someone unknown to any of the participants in the case and required both parties to pay equally, even though Marie was “fired” from the business and had no income. Once the evaluation report was returned, neither party agreed with the assessment. Each then hired their own forensic accountant and motioned the court to consider their report as the true and accurate calculation. Once submitted to the court, it took nearly another 8 months for the court to make a final determination on this point alone. Several more years of motion practice ensued; maintenance requests, orders of protection, motions for exclusive use of the marital home, depositions, more business and forensic evaluations, subpoenas of bank records for each party and third-party family members, subpoenas of the mortgage application for the marital home, etc. To what end? Trial dates have now been set and each is prepared to defend their respective positions, yet there is no way to predict how the court will decide on this matter. The only guarantee they have thus far is that this process has cost them 8 years of their time, hundreds of thousands in legal fees and immeasurable personal anguish.
What if Marie and Bill had chosen the Collaborative divorce process over litigation? How might their situation have been different?
Here, we will assume that the two would have stayed with Collaborative and neither would have chosen to leave the process and litigate the case. For starters, the two would have had the support and guidance of the entire team, to fully explore the reasons that the business valuation come back at a certain number. What does this number mean to the individual? And what are the underlying concerns about the number being too low or too high. Keeping the couple’s interests in mind, the team would help them choose a forensic accountant who is experienced, reputable, who has been specifically trained in the Collaborative model and who would sit and educate each of the parties on why he/she came up with the valuation that was obtained. There would never be a question as to whether this professional is being fair and accurate because the accountant acts as a neutral in the situation, always siding with the facts and providing any information or documentary proof to the team. The forensic accountants who work within this model understand the sensitive nature that is being addressed and will take the time to sit and explain every aspect of the report to both parties, to ensure that each fully understands how the determination was made. Next, there would not have been any motion practice, no depositions, and no subpoenas to obtain information. All of the necessary information would have been provided by Marie and Bill and if either had challenges providing any documentation, the team would have been there to provide any assistance needed. Each would have come to the meetings fully prepared to talk about the financial issues and about the uncomfortable topics like Marie’s inability to pay for a separate residence while not working or Bill’s failure to provide Marie with a reason as to why he was not willing to work on the marriage any longer. Lastly, Marie and Bill would have had worked within their own timeframe to resolve their issues, not the court’s. Waiting several months for a new court date or waiting for the new judge to be assigned and then caught up to speed on the case, was time prohibitive. This time could have been better spent working on a mutually agreeable solution; challenging yet attainable.
In the Collaborative setting, the objective is always to support the family in coming up with the right solution for them. Just as no two individuals are the same, neither are two family situations. By building a reliable team to provide guidance and education, the Collaborative model can help couples like Marie and Bill, come up with a customized solution that will work for their family, at the time of the divorce and into the future. The Collaborative process can save couples time, money and emotional turmoil, which is something the court is just not equipped to do.
Empowering, supportive, transformative.
Your family deserves Collaborative.