Collaborative divorce is an alternative to adversarial litigation, one that saves all parties involved time, money, emotional stress, and physical effort. A collaborative divorce occurs when both parties can come to an agreement on key terms of the divorce decree. Namely:
The state of New Mexico’s dissolution of marriage (divorce) process strongly encourages all parties to come to a collaborative agreement. Once the process of dissolution has begun, the court will request that all parties submit documents outlining their arrangement for all the areas listed above so that a final divorce decree can be issued. If the couple cannot submit a single, legally compliant proposal in agreement for all areas, then the court will order that the couple attends mediation. It is only after mediation fails that the court will permit further hearings, and the court will reserve issuing a judgment on the final divorce decree only as a last resort. In other words, collaborative divorce is not just an ideal situation — it’s the expected norm.
Before a collaborative divorce can work to the benefit of all parties involved, each must understand the legal consequences of their decisions and the options they have available. That’s why individuals may wish to be represented by a collaborative divorce attorney, even if they have no intention of going to trial. Working with a collaborative divorce lawyer ensures you understand all issues on the table, allows you to take stock of your current situation, and helps you anticipate the documentation and decision-making the court requires before it will issue a divorce decree.
New Mexico Financial & Family Law can assist you with all aspects of divorce, and we excel in a collaborative environment. Our goal is not just to help our clients but to help everyone involved seek a resolution that works out for the future of the family. Learn about collaborative divorce strategies and how we can assist you when you call (505) 503-1637 or contact us online.
Simply put, a collaborative divorce is a process where the court has as minimal of a role as possible before the issuance of a final divorce decree. Under an ideal collaborative divorce process, one spouse will file for divorce, and then both spouses will submit together with a single agreement for all key areas of the divorce decree. The court will then review the proposed agreement, determine if it is valid under the laws of the state, and then approve of the agreement before then issuing the divorce decree. Note that the terms of the divorce decree are legally binding in all circumstances, and they can only be altered through divorce decree appeal or divorce decree modification.
Collaborative divorce differs greatly from adversarial divorce litigation. When one or both members of a couple decide that they need the court to intervene in order to get the agreement they want, that leads to adversarial litigation. The litigation process allows for motions like discovery, which compels an individual to submit any and all relevant evidence, or subpoena, which compels an individual to testify or submit to an interrogatory. In addition, experts in child psychology, finance, and divorce law may be called upon to testify in order to convince the court to weigh one way or another on an issue.
Every step of the adversarial litigation process takes considerable time and money. Court fees significantly increase, for one thing, and each spouse may need to rely extensively upon outside counsel, resulting in significant hourly fees or a retainer.
Even when engaging in litigation, a spouse may be unable to convince the court to rule one way or the other. In New Mexico divorce cases, as well as in many other states, the courts prefer to defer judgment to the couple, and they will instead request reasonable proposals that comply with state family laws and family law policies.
In effect, New Mexico family law courts strongly encourage collaboration and will avoid formal litigation to the extent possible. Families are strongly encouraged to come together, understand what the best arrangement might be for everyone, and to submit a single proposal for the divorce decree.
A mediated agreement is a form of collaborative divorce.
In mediation, an outside third party, known as a mediator, facilitates a discussion between the couple. The mediator will be thorough in pointing to the expectations and obligations of the couple that needs to be resolved and documented before the divorce decree will be issued. For example, the mediator may point out the child support guideline amount formula the court will use to establish a baseline child support amount. The couple will need to be able to justify any deviations from this amount, and they must also be prepared to explain how their final decision is in the child’s (or children’s) best interests.
However, a mediator cannot provide legal advice. They also do not represent either party and are neutral, as such. Each party can consult with their own personal collaborative divorce attorney, either during mediation or outside of it, but the mediator can never substitute this role.
In New Mexico, mediation will be ordered if divorce proceedings are started but the couple is unable to come to an agreement.
The key difference between collaborative divorce vs mediation is that formal mediation may not be needed in order for the couple to come to an agreement. They can, instead, meet together and discuss proposals and concerns without a mediator present. They may do so with their respective collaborative divorce attorneys present. In addition, all parties might agree to find professionals, such as mental health and financial, in order to work through the emotional and financial issues that led to the divorce in the first place.
The objective of collaborative law is to reach an agreement that meets the needs of all parties, including any children who might be involved. The process can lessen destructive and unnecessary conflict.
As opposed to litigation, which can be adversarial, collaborative lawyers work together to reach a mutually advantageous agreement. Clients are proactive participants in all matters rather than have a third party making decisions on their behalf. All settlements are based on the values, critical needs, and interests of both parties rather than an unwanted ending fueled by the prospect of going to court.
We, as well as the courts, strongly encourage couples to at least try the collaborative divorce process. If you are interested in speeding up your divorce’s resolution, saving time and money, and working to form an agreement in the entire family’s best interests, we are here to help you succeed in those goals. Schedule a no-obligation, confidential case review with a collaborative divorce lawyer now when you call (505) 503-1637 or contact us online.
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