Legal Blog

Will COVID-19 lead to the rise of Collaborative Divorce

In addition to the daily coverage of the COVID-19 pandemic that includes mortality rates, numbers of newly reported cases, and the impact of the pandemic on the economy, there has been a surprising amount of coverage predicting what the impact of this pandemic will be on both the birth rate and the divorce rate.

News outlets all over the world are predicting both a baby boom and a divorce tsunami when this is all over. Both may be true, and perhaps one then the other. What all of these articles have left out is that the way people get divorced must change in light of recent events. The option to race to the courthouse steps to file for custody or divorce doesn’t exist right now. Courts across the country are closed except for emergency matters. No one knows when the courts will reopen for normal business including divorce and custody cases.

Even in cases where one parent is denying the other parent access that is already court-ordered, many courts are not hearing these cases on an “emergency” basis. Enforcement by the court simply isn’t available in most family cases right now. For those who want a resolution before courts reopen, they will need to turn to attorneys who are trained to settle cases without using the threat of litigation. In the family law world, these are the attorneys who are trained in collaborative divorce.

Under ordinary circumstances, you can get a divorce if you want one. Even if your spouse wants to stay married, if you file for divorce with the court, sooner or later, the court will grant you a divorce. The same is true if you and your spouse both want a divorce but don’t agree on any number of issues (custody, property division, alimony) – sooner or later, the court will decide for you.

With the courts closed, the options for unhappy couples are severely limited. There is no threat of “I’ll see you in court” to motivate people to settle or even to move out or move on.
Most divorce cases settle even if it’s on the courthouse steps. How much it costs you to reach that settlement depends on a lot of factors, but the threat of litigation is often a compelling one. Few people want to air their personal lives on the public record in court, and fewer want to pay an attorney for the cost of trial.

Without the option to file in court what are these unhappy couples and parents going to do? Without access to the court, the skills of a collaboratively trained attorney are essential to resolving new and pending cases.

Collaborative divorce is a process in which couples who are divorcing or trying to co-parent work with specifically trained professionals, including lawyers, coaches, child experts, and financial experts, to come to an agreement. It is a voluntary, but contractually based, alternative dispute resolution process. The process is completely open, and each side generally waives their attorney/client privilege within the process. The participation agreement disqualifies each party’s counsel to represent the client outside of the collaborative process, including if the matter ends up in litigation.

Collaborative divorce has been around since 1990. It has steadily grown in popularity as the cost of litigation rises and people become more aware of the potentially devastating effects that a high conflict divorce can have on children.

Collaboratively trained lawyers are uniquely skilled in negotiation and conflict resolution. Their training and experience teaches them to think outside the box and certainly to think outside the constraints of what courts can or would do. The true goal in the collaborative process is problem solving rather than positional negotiations. Many collaboratively trained lawyers engage in a “collaborative-like” process that is focused on problem solving without the requisite attorney disqualification if the case ends up in litigation.

The main difference between these cases and other divorce cases is the training of the attorneys. Collaboratively trained lawyers are focused on reaching resolution, not on “winning.” This unique perspective has led to judges recommending that other attorneys work or consult with collaboratively trained attorneys to resolve cases while the courts are closed. However, collaborative divorce was around long before this global pandemic, and it will certainly be available once there is a return to “normal.” Just because the courts reopen does not necessitate that everyone runs to the courthouse steps. Litigation is the most expensive avenue for resolving a case. In most cases, it is also the longest road the resolution. Perhaps the limited access to the courts will broaden awareness of alternative dispute resolution options such as collaborative divorce.

In the meantime, individuals who think they want to file for divorce or custody during or soon after this crisis is over, should consider a collaborative or collaborative-like process. When courts do re-open, the backlog will be enormous. No one knows how long it will take the courts to catch up or to schedule and decide newly filed cases. If the court schedules newly filed cases 12-18 months down the road, more individuals may find quicker resolution by hiring a collaboratively trained attorney or one with mediation training who has the skills to reach an agreement without the courts. While this was true pre-pandemic, non-litigation options were less well-known. TV and movies portray divorce and custody cases as adversarial court cases with each side looking to win. The reality is far less entertaining, more expensive, and most people who have been through a trial would likely agree that there is no “winning” in court. As people begin to consider their post-pandemic life, and beyond, hopefully the increase in divorce and custody cases resolved without filing suit will be more than a blip.


Picture of Emily Gelmann

Having grown up in a true “modern family,” Emily Gelmann is intimately acquainted with challenging family dynamics and understands how families, and particularly children, will not only survive a divorce but can thrive afterward. Emily’s personal and professional experience enables her to understand clients’ challenges and needs, to help them achieve their goals, and to ensure that they are able to move forward following a divorce. She handles family law matters, including divorce, custody, pre- and post-nuptial agreements, and is often court-appointed to represent children in divorce cases.








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