Part 2: Lack of Formal Discovery Process Raises Concern in Collaborative Divorce

Introducing a new five-part series of revealing articles focusing on the collaborative approach to divorce. At the Law Office of Ronald L. Hendrix, P.C., 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.

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.

Part 1: Beware! The Reality of Collaborative Divorce Attorney Cliques
Part 2: Lack of Formal Discovery Process Raises Concern in Collaborative Divorce
Part 3: Choosing Collaborative Divorce Complicates Addressing Future Post-Decree Issues
Part 4: Collaborative Divorce Practice May Attract Inexperienced Attorneys
Part 5: When Collaborative Divorce Fails: The Cost of Starting Over and Prolonging the Divorce.