In recent years, proceeding with divorce using collaborative methods has become the “modern” way to divorce in Virginia and the District of Columbia. However, the formal or informal collaborative process does not always work. For example, sometimes this process is not the best fit if there are safety issues, abuse, severe mental health disorders, untreated alcoholism or other drug addiction, and/or high conflict personalities involved.
Litigation and Court intervention is sometimes necessary. When safety or abuse issues are present, the Court can intervene by issuing a protective order. When a party has a severe mental health disorder or an untreated addiction, the Court can order an unwilling party to participate in a mental health evaluation to determine his or her ability to be left alone with his or her child. High conflict personalities are typically unable to recognize the benefits of a goal-oriented process, like collaborative law, that would resolve the conflict that they so desperately want to continue.
The Court can force difficult people to listen when others cannot. Formal litigation has tools to forcibly gather information and documents from individuals unwilling to share. These tools include subpoenas (requests made directly to entities for information needed) and formal discovery (questions answered under oath and document requests of the other party). The Court can compel a party to share information if they refuse and can award sanctions.
Just like a good leader knows when to use diplomacy versus when it’s time to go to war, a good attorney will know when to collaborate or when to initiate litigation. Sometimes mixing the two processes is appropriate depending on the case. Even if you believe that a collaborative divorce is not appropriate for your particular situation, I encourage you to meet with a family law attorney who is trained in collaborative law to understand the process. Collaborative law attorneys have a different approach than those who purely litigate. Knowing your options during such a difficult time can help guide you in the right direction as you move forward.
Emily Baker is a Senior Associate practicing out of FTLF’s Washington, DC and Northern Virginia offices.