It’s a choice that has to be made by both spouses, but it comes down to a choice to fight, or to attempt to resolve the divorce peacefully.
If there are minor children and the divorce is conflictual, it is rare that the children are not somehow put in the middle and affected by the divorce. Some parents are able to go through the conflict of a divorce and keep the children out of it, but if both parents are able to do that, they are often able to find a way to settle the divorce also without a heated court battle.
Collaborative Divorce is process in which both parties agree to attempt to settle all of the issues in the divorce without litigation – you can read more about the process by following this link – collaborative divorce.
One issue that comes up in some divorces is one spouse or the other attempting to hide income or assets, or not voluntarily turning over requested financial records. A concern some spouses might have about a collaborative divorce process is how can I force my spouse to turn over the business or financial records, if I don’t have the court to force him or her to make the disclosure. One answer is that in effect the court is there to force disclosure. If the parties enter into a collaborative divorce process and one spouse refuses to cooperate in making financial disclosure, the parties will end up in court, the court will force disclosure, with the same end result as voluntary disclosure, only at a much greater cost. Also, part of the process is to encourage both parties, in addition to doing things like providing requested records because that is in their best interest, to act in good faith towards the other party.
Even in the context of litigation, it never quite makes sense to me for a party to refuse to turn over requested financial records, when there are discovery procedures in place to force the disclosure. Sometimes, for one reason or another, there may be an incentive for one party to delay. In cases where the parties have limited resources, one party or the other may figure their spouse won’t be able to afford the attorney’s fees to pursue discovery. There are remedies for that, however. The court can order a spouse to pay the other spouse’s attorney’s fees if the offending spouse’s conduct causes unnecessary litigation expense. When there is a large amount of money at stake, a spouse may think it’s worth attempting to hide income/assets because of a potentially large pay-off. There are plenty of highly skilled investigators and forensic accountants out there, however, with expertise in finding assets and money.
One spouse or the other may be an unreasonable person or decide to fight rather than cooperate because they are seeking an unfair result, and they make a calculation that the percentage chance of succeeding warrants the litigation costs; or they believe their attorney is better than the other party’s attorney which will allow them to succeed. Or one spouse or the other or both may be angry and not want to cooperate. (To be continued in Part II — with ways a collaborative divorce can lead to a more positive outcome, and cases in which collaborative divorce is not advisable).