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Negotiated/Friendly (“Collaborative”) Divorce in Georgia
Collaborative Divorce in Georgia - the Basics
How is negotiated divorce different from a typical contested divorce
How is negotiated divorce different from an uncontested divorce
Who sets the ground rules in a negotiated divorce
Who are the other professionals involved?
Will negotiated divorce work if my spouse and I are not speaking to one another?
How involved will my children be in the process?
Do I give up the right to go to Court if negotiations break down?
Can my Collaborative Divorce lawyer represent me in Court if my collaborative divorce breaks down?
How can I be sure that my Collaborative Divorce Lawyer is not giving away too much to my spouse?
How does the cost of a negotiated divorce compare to a traditional divorce?
Divorce in Georgia - the Basics
What are the grounds for divorce in Georgia?
My spouse wants a divorce, but I do not agree - what are my rights?
Negotiated Separation Agreements and Child Support in a Collaborative Divorce
What is Collaborative Divorce and How is it Different from typical divorce?
Collaborative divorce is a process by which a divorcing couple negotiate an out of court settlement to divorce and sepation issues with the help of “coaches” - including counselors, financial advisors, mediators and specially trained lawyers. The collaborative divorce movement began in the late 1980’s in Minnesota when a divorce lawyer named Stu Webb decided that the traditional adversarial divorce system was not benefiting his clients.
Mr. Webb began working on a new system whereby all the parties to a divorce - both the lawyers and the litigants - agreed to negotiate out of court to resolve separation issues. When the parties got stuck, they agreed to bring in impartial outside help - family counselors, financial advisors, mediators and other professionals to help resolve the disputes.
Stu Webb acted on several truths that many divorce lawyers already knew:
- divorce judges and juries are unpredictable and often arbitrary
- the emotional and psychological damage caused by a litigated divorce will scar adults and children for a lifetime
- people act badly and say hateful things during the course of a divorce
- lawyers perpetuate the nastiness by exposing the other parties failings in an attempt to win
- no one can “win” a divorce because of the collateral damage
The collaborative divorce movement that began in Minnesota has spread throughout the United States. Several years ago, a new organization - the International Academy of Collaborative Professionals (IACP) was formed to establish principles, create training curricula and documentation, and to standardize practices for members.
Jonathan Ginsberg and Bernie Stittleburg of Ginsberg Law Offices have been trained and certified as Collaborative Divorce professionals.
How is Collaborative Divorce different from an uncontested divorce?
A collaboartive divorce seeks to resolve issues that divide the divorcing couple. For example, questions of child custody, visitation, child support, division of pensions often cannot be agreed upon. In a collaborative divorce, these issues are debated, negotiated and resolved with the assistance of family counselors, finanical planners and other experts. By contrast a truly uncontested divorce involves cases where all of the issues are agreed upon by the couple and a lawyer sets out the agreement in a Separation Agreement.
Note, however, that the idea of mediation is not unique to the collaborative process. Divorce mediators are frequently used even when the parties are unwilling or unable to participate in the full collaborative process.
Who Sets the Ground Rules in a Collaborative Divorce?
When you agree to participate in a collaborative divorce, you and your lawyer will be asked to sign a pledge affirming your agreement to forego adversarial litigation and to abide by certain behaviorial guidelines. Click here for the Statement of Principles for Collaborative Divorce.
It is important to note that both you and your spouse have to agree to abide by the principles of a collaborative divorce and you must both choose lawyers who are certified by the IACP. The Collaborative Law Center of Atlanta web site contains a directory of member lawyers who are certified collaborative law professionals.
Who are the other professionals involved in a collaborative divorce and how do I know that I can trust them?
The participants in a collaborative divorce include the divorcing parties, their lawyers, and other professionals such as accountants, financial planners, family therapists, psychologists, and other experts deemed necessary. All of these affiliated professionals have been trained and certified by the Collaborative Law Center of Atlanta. Attorneys who handle collaborative divorce belong to this professional association for collaborative law that requires its members to abide by certain principals.
The other professionals - often referred to as the collaborative divorce team - are neutral parties whose sole purpose is to work towards a negotiated solution. Your attorney and your spouse’s lawyer are both involved in choosing the consulting professionals involved in your case.
How is Collaborative Divorce different from a “settlement” reached in a traditional divorce case?
Obviously, some traditional divorce cases are settled out of court. If you and your spouse have reached an agreement on all issues, we can help you by preparing a Settlement Agreement that will be presented to the Judge.
Unfortunately, however, settlement in many traditional divorces is reached after months or even years of hostile litigation. Often one or both parties simply gets tired of fighting or, as is most common, simply runs out of money. You and your spouse should not have to liquidate all of your resources before you come to the realization that your divorce case can be negotiated without a great deal of pain and cost.
My spouse and I barely speak and we can’t agree on too much of anything. Is collaborative divorce right for us?
Collaborative divorce is not the right solution in every case. If you relationship with your spouse has deteriorated to the point where you are not speaking, it may be hard to find the trust and good faith necessary to proceed with a collaborative divorce.
On the other hand, the collaborative divorce process may be a source of common ground. Presumably both you and your spouse want to save money, and presumably both of you want the best for your children. At least at first, your lawyer and your spouse’s lawyer can do the talking.
Thus if you believe that a negotiated divorce is in your best interest, your goal right now may be to get your spouse to consider the benefits to everyone of a collaborative divorce and to pick up the phone to speak with a collaborative divorce lawyer.
We would be happy to give you a list of the names of lawyers who are trained in the collaborative divorce process here in the Atlanta area.
How involved will my children be in the collaborative divorce process?
Children are often the ones most harmed by the divorce process; thus, the needs of your children will have to be addressed before during and after your divorce. The collaborative divorce process arose from one lawyer’s frustration and anger about how family relationships were being absolutely ruined by adversarial divorce. Thus, principal VI of the Collaborative Divorce pledge specifically speaks to the obligation of the parties to protect their children during the time when they are most vulnerable - during their parent’s divorce.
Our office has established a network of compassionate and caring child advocates who are available to help your children make sense of this upheaval in their lives. As a divorcing parent, remember that while your relationship with your spouse may have changed, your children continue to need both of their parents now and in the future.
Do I Give Up the Right to go to Court if the Collaborative Divorce process fails?
No. In some cases, the collaborative divorce system does not work. Although at the beginning of your case, you do sign an agreement pledging to work within the collaborative divorce process, this pledge is not a legally binding contract. Further, whatever progress you have made can be the starting point for a litigated resolution.
As noted above, when the divorcing spouses commit to a collaborative divorce, they should be foregoing the idea of winning at the expense of the other spouse or somehow punishing the other spouse for certain conduct. The usual reason that a collaborative divorce fails relates to the decision by one spouse to punish or damage the other spouse.
Please also note that by signing the collaborative divorce pledge, your lawyer will not be able to represent you in a contested divorce matter.
Can my Collaborative Divorce Lawyer represent me in Court if negotiations break down?
No. The IACP and the founders of the collaborative divorce movement want to discourage both attorneys and the divorcing spouses from giving up on the collaborative process too early. Attorneys who accept a collaborative divorce case pledge to withdraw from representation if the parties choose to litigate. While litigants retain the right to turn their case into an adversarial contest, they will lose their financial and time investment in the collaborative process.
How can I be sure that my Collaborative Divorce Lawyer is not giving too much away to my spouse?
Your collaborative divorce lawyer will approach your case in a manner differently from what you might expect. Lawyers in traditional divorce cases often portray themselves as aggressive, hard line and demanding. This extremely adversarial attitude arises from what potential divorce clients think they want. When a traditional divorce lawyer meets with his client for the first time, that client is probably going to be angry, hurt, and looking for a way to attack or punish his/her spouse. For a traditional divorce lawyer to make a living, he has to conform his behavior to what his clients are expecting.
This aggressive, hard line attitude frequently spills over into the correspondence and negotiations. It has been my experience that once the parties stake out at the beginning these angry, agressive and adversarial positions, it is very hard to back off without appearing to lose face. As a result, divorces that could be and should be resolved quickly end up costing a lot of money and destroying lives.
Collaborative divorce is different. Lawyers who have undergone collaborative divorce training understand that their goal is a negotiated settlement. This goal does not diminish or eliminate your lawyer’s responsibility to represent your interests fully and zealously. There are times when the parties will reach and impasse. The solution is to use mediators to settle the specific dispute before it grows to contaminate the whole process.
Here’s a secret about divorce law: many of the issues that judges face in contested cases are not new. Many of the legal issues that arise in a case have been considered by judges for years and years. Further, many of the “judgment calls” that judges make are predictable, because a Superior Court Judge will likely be consistent in his rulings over the years and because the core principles of Georgia divorce law do not change frequently.
Thus, if you choose to litigate, you and your spouse may be the only ones in the courtroom who really have no idea what is likely to happen. The opposing attorneys have a fairly good idea and the baliff and other court personnel can make a prediction. Yet many aggressive divorce lawyers fight the same battles year after year with different clients because that’s what they think their clients want and expect.
As your collaborative divorce lawyer, we at Ginsberg Law Offices will advocate for your position, but we will also advise you if your expectations and “wish list” is unrealistic. The other, impartial experts such as financial planners, family therapists and mediators help us help you by informing you about what to expect.
My Spouse has already filed a Complaint for Divorce - is it too late for Collaborative Divorce?
No, it is not too late, although you will not be able to participate in a true collaborative divorce unless both parties have retained trained and cerfied collaborative divorce lawyers. You can visit the Atlanta Collaborative Divorce Center website for links to other trained collaborative divorce professionals or you can contact our office for several names.
If a Complaint has been filed, it can be dismissed without prejudice and the collaborative divorce process can commence.
How does the cost of a Collaborative Divorce Compare to a Typical Divorce?
In most cases, the cost of a collaborative divorce will be significantly less than the cost of a traditional litigated divorce. Because no lawsuit is filed until the issues are settled and the case is ready to be disposed of by the Judge, there are no litigation costs like those arising from depositions, investigator fees, interrogatory responses, requests for production of documents, requests for admissions, amendments to pleadings, witness fees, dueling experts, etc.
Some of our clients have expressed concern about the costs associated with bringing in divorce coaches, financial specialists or child advocates. There is obviously a cost to using these associated professionals. However, our experience has been that the time spent by these associated professionals significantly increases the efficiency of the entire process, as follows:
1. tasks performed by associated professionals include work otherwise done by attorneys, such as explaining the divorce process and counseling our clients, reviewing financial data and resolving contested issues through negotiation. Time expended by lawyers doing this type of work is billed at a lawyer’s hourly rate and can be inefficient as your lawyer will be asked to wear many hats. By contrast, the hourly rate of collaboratively trained associated professionals is usually less than the hourly rate of lawyers. In addition, the associated professionals in our network are trained in the collaborative process and are specialists in their fields.
2. use of associated professionals does not increase the total amount of time expended in a case - instead, that time is spent more efficiently. Since the financial and counseling associated professionals are recognized as neutrals by the parties from day one, the parties can resolve their issues more readily.
You should also realize that the collaborative divorce process used in Georgia is a tested and defined process. It is not an “informal” process. The attorneys and associated professionals understand and are trained in the collaborative divorce protocol created by the Collaborative Law Institute of Atlanta. There is a set agenda for certain types of meetings and attorneys certified in this process are not making up the process as they go along.
At Ginsberg Law Offices, we work off of a retainer. In most cases, we ask for $2,500 to $4,000 as a retainer to be held in trust and we bill against that retainer. Obviously, the main costs involved with a collaborative divorce are attorney time, appointments with financial experts and therapists, and mediation sessions.
Divorce in Georgia - the Basics
What are the grounds for divorce in Georgia?
Georgia law lists several “fault” grounds for divorce, including such things as adultury, physical or mental abuse and abandonment. The most common basis for divorce, however, is “irreconcilable differences,” or “no fault” divorce. A collaborative divorce will use the “irreconciliable differences” legal basis for your divorce.
My spouse wants to get a divorce, but I do not agree. Can I stop the process?
You can stop the process temporarily, but, as a practical matter, if one party wants a divorce, that spouse has the right to a divorce. The collaborative divorce system uses coaches to help reluctant divorcing spouses to come to terms with the coming upheaval in their lives as well as coaching the “ready to go” spouse to slow down and consider the ramifications of a divorce on both his spouse and their children.
Do I have to be a resident to file for divorce in Georgia?
Yes, you have to be a resident for 6 months before the Court system in Georgia will permit you to file for divorce.
How fast can I be divorced?
The fastest you can be divorced is 31 days after the divorce lawsuit is filed and served. In a collaborative divorce, however, no lawsuit is filed or served until after all the details have been worked out.
Negotiated Separation Agreements and Child Support in a Collaborative Divorce
How is alimony determined in Georgia?
Alimony represents a payment by one spouse to the other spouse to enable the receiving spouse to maintain a certain lifestyle. It is a legal recognition that contributions to a marriage need not be only finanical in nature. Georgia Superior Courts - the Courts that rule on domestic relations matters - are courts of both law and equity (fairness). As a court of equity, Georgia superior court judges award or sanction alimony as a means to achieve an “equitable division” of marital property. It is most common when one spouse has given up career opportunities to contribute to the marriage in other ways such as making a home or raising children.
In a collaborative divorce setting, alimimony is negotiated, often with the help of a neutral finanical expert.
How is child support calculated in Georgia
In Georgia, child support is based on Section 19-6-15 of the Georgia statutes. It provides that:
1. Computation of child support shall be based upon gross income.
2. Gross income shall include 100 percent of wage and salary income and other compensation for personal services, interest dividends, net rental income, self-employment income and all other income, except need-based public
assistance.
3. The amount of the obligor's child support obligation shall be determined by multiplying the obligor's gross income per pay period by a percentage based on the number of children for which child is
being established.
4. The duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.
The percentages of gross income to be considered are:
Number of Children Percentage
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1 |
17-23 percent |
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2 |
23-28 percent |
|
3 |
25-32 percent |
|
4 |
29-35 percent |
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5 (or more) |
31-37 percent |
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