In Collaborative Divorce, the process of gathering information is streamlined and simplified. Collaborative Divorce uses informal discovery, such as the voluntary exchange of financial information, and relies on neutral experts such as tax advisors, financial planners, appraisers, child specialists, and divorce coaches. In Collaborative Divorce, all team members sign a contract, to be honest with the others involved in the process and to not hide the ball.
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- In most cases, the team members will discuss what types of documents they will want to exchange prior to the first or second four-way meeting. Then they will exchange these documents very early in the case. The purpose of this information gathering is so everyone is on the same page and has the same knowledge of the family’s finances. In the Collaborative Law Participation Agreement, there is a requirement to give full disclosure to all those involved. This obligation to be honest with one another applies to the clients, the experts, and even the lawyers. Not only is lying forbidden, but also lies of omission are not allowed, and everyone is required to proactively disclose all relevant information (such as all assets, debts, and income) to all involved.
- In the event that one of the parties, called “participants,” refuses to comply with this disclosure, then that participant’s lawyer is obligated to withdraw from the case. Since everyone is aware of this obligation on the front end, it is rare that this comes into play.
- Because everyone involved in the Collaborative Divorce process has contractually agreed to fully disclose everything to the others in the process, the lawyers and experts only ask for what they really need to analyze the finances and not “extra” information to harass, annoy or run up the costs for the other client. If after the first round of information and document gathering anyone needs more information, then either participant can ask for this information at any time and more will be provided.
- The purpose of the informal information gathering is to allow everyone to be on the same playing field and educated on the finances so they will be comfortable to be able to ultimately settle the matter. This voluntary exchange of information is of great benefit to the process, resulting in a faster, often less expensive, and more equitable divorce than the typical result in court.
In litigation (the court process) Discovery is a formal process where the attorneys attempt to learn as much about the facts of your case as possible. Through a variety of methods, both lawyers will formally request information from you, your spouse, and potential witnesses in your case. This formal discovery process can be very lengthy costly and oftentimes uncomfortable for the participants. The parties will exchange formal requests such as the following:
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- Requests for production of documents, asking that certain documents be provided by you or your spouse;
- Requests for admissions, asking that certain facts be admitted or denied;
- Subpoena documents; and
- Depositions in which questions are asked and answered in the presence of a court reporter, but outside of the presence of a judge.
Often times the requesting party asks for far more than they really need, such as years of documents or extremely broad questions either out of fear the other party is hiding something or sometimes just to require their spouse to have to run up extra legal fees, be embarrassed, or make them waste their time. The process of drafting this discovery can be very time-consuming and normally will not be submitted to the other side until months after you first meet with your attorney.
In Court, after each request is received, the responding person has 30 days, which can be extended to 60 days easily, to respond. Sometimes parties will request even more time to respond which delays the progress of your case. The responses are craftily written by the attorneys often with the intent to hide documents and information from the requesting party. Then the requesting party often will have to try to force the responding party to respond by having a hearing called a motion to compel.
The discovery process is a layered one where once one side gets documents and answers to written questions and then may ask the other side for a deposition. Then the lawyer may subpoena the other side’s documentation directly from the bank or other companies/ people that may have the documents. The whole process is more like an investigation and feels like an interrogation of the other side and their friends, family, and colleagues.
After all of this process is completed and months, if not years, pass, the litigants still will not ever really know if there is something else out there. The lawyers in the court case are not allowed to directly lie, but if for some reason the exact right question is not asked, then the lawyer is not obligated to disclose the information. This often creates doubts in the litigants’ and lawyers’ minds, leading to overly broad questions digging deeper into issues and making it much more difficult to settle the case. Most clients despise this formal discovery process, because, in the end, the formal discovery process is not set up for speed or cost-effectiveness, causes lots of insecurity, and oftentimes leads to unsatisfactory results.
Eric Trosch believes, as a family lawyer, that trust and honesty are two of the most important qualities. I also believe in the importance of pursuing collaborative law whenever possible. There are many situations where it makes more sense for a client going through the painful process of a divorce, and all of the negotiations that it entails, to utilize a collaborative approach with his/her spouse/partner and make these decisions outside of court. This helps to alleviate the incredible stress that is already present in such family transitions.