Collaborative Divorce

Divorce proceedings in court can be expensive, time-consuming, and emotionally draining. Using the tools of the court is more muscle than some people want when restructuring their family. Collaborative divorce is a type of procedure in family law for parties who wish to handle their divorce cooperatively. The collaboration process allows the parties to agree to solutions regarding the various legal issues connected with divorce. These may include the distribution of property, child custody, support payments, and many other points of legal contention.

Settlements are reached in four-way meetings. Each party and their lawyer sit around a table. Issues are dealt with individually, and outside help, such as mental health professionals and financial counselors, may be brought in as the need arises.

Why Choose a Collaborative Divorce Process?

First, collaborative divorce helps limit the cost of the divorce. Second, parties are committed to being cooperative, low conflict, and candid in negotiations. By accepting that the marriage is ending and taking a proactive approach to deal with difficult questions about finances, child custody, and spousal support, couples can side-step a potentially contentious and adversarial situation.

Collaborative divorce allows the parties to work out their differences in a non-confrontational way. Their attorney represents each party, and a mediator may also be present to help facilitate the process. Once the parties agree on their issues, they can present their conclusions to the judge, who can solidify the terms into a legally enforceable court order.

Many differences exist between a collaborative divorce process and traditional court divorce litigation. In the collaborative divorce process:

• Both parties agree with one another that they will resolve the divorce without going to court, and they will stay out of court the entire time
• The collaborative process sets out goals, objectives, and procedures that each party will follow throughout the entire process
• The process focuses on creating a solution to reach the important needs and goals of each party mutually and avoids the court-divorce situation where a judge ends up deciding critical issues
• The collaborative process will reach a solution efficiently and fairly that each party agrees to. When a couple can divorce peaceably and work out their issues fairly and calmly, it bodes well for the future of their relationship, for example, as co-parents
• Both spouses work as a team and not against one another, which of course, is very different from traditional divorce litigation

When Is Collaborative Divorce Recommended?

Collaborative divorce may be recommended when:

• The parties seeking divorce are in basic agreement regarding any big legal issues that need to be worked out
• The parties can communicate with one another in a peaceable and productive manner
• A faster and more streamlined process is desired
• The parties have individual needs or interests that they’d like to focus on more than the ones that courts typically put first

Are There Any Drawbacks?

On the other hand, collaborative divorce does have its drawbacks. First, the process is not always available in every jurisdiction and for all cases because not all cities have collaborative lawyers and mediators available. Also, collaborative divorce is generally not recommended when:

• The parties have a legitimate dispute over marital property that needs to be resolved through the legal system
• There is a possibility or history of physical abuse or harm
• The parties are unable or unwilling to work with each other
• The parties do not trust each other to keep to any agreements that are reached
• The parties have emotional or relational issues that prevent them from cooperating in general
• One or both of the attorneys is more committed to the collaborative process than to their client’s best interests
• One of the parties or one of the attorneys has a gender bias
• The fact that one party has a history of absent parenting or bad behavior (that doesn’t amount to abuse) may be considered irrelevant by the attorneys or mediator

What Is a Participation Agreement?

A Participation Agreement is the most important document outside the final divorce decree in a collaborative divorce case. It is reviewed and signed by all the parties involved, including the spouses and their respective lawyers. The Participation Agreement is a legally binding contract that obligates each party to the divorce to engage collaboratively. This contract also limits the scope of each attorney’s representation. For example, attorneys must withdraw from the case if the collaborative process proves unsuccessful.

A Participation Agreement includes provisions such as:

• Commitments to work together cooperatively
• How each party will communicate with each other (directly, through their lawyers, or otherwise); some couples agree that all communications will be in writing, via email, or text. This encourages the parties to think before communicating instead of making commitments or engaging in outbursts that they will regret later
• Agreement that the parties will truthfully and fully disclose all relevant information to each other
• Whether neutral mediators will be used
• Identification of the areas that need the attorneys’ or mediator’s involvement and which are already agreed upon
• Commitments that the parties will act in their children’s best interest when dealing with support and custody issues and promises to try to minimize the emotional tension to their children arising from the divorce
• Commitments that the parties will not take their matter to court
• Statements by each of the attorneys that if the matter cannot be resolved through the collaborative process, the attorneys will withdraw and may not represent either of the parties in court

How Does the Collaborative Divorce Process Begin?

Before beginning a collaborative divorce, both spouses should become educated in the collaborative process by searching for materials and resources, on the internet or at the library. Another resource is to meet with a knowledgeable family law lawyer who can explain the process. This lawyer will not represent either of the parties but will offer advice and information on the collaborative process.

The next step is for both parties to find attorneys for themselves who are trained in the collaborative process. Then, the parties and the lawyers will meet to discuss the collaborative process, nail down which issues remain open for decision-making, and draft the Participation Agreement. Most temporary or simple issues are decided during this first meeting. Resolving these matters out of court will save the parties a good deal of time and money.

Next, if the parties are interested in hiring a mediator, a financial expert, or other professionals, they will do so. Often their lawyers have contacts in these areas, professionals whom the attorneys trust to do a good job for a reasonable cost.

Do I Need a Lawyer for Help With the Collaborative Divorce Process?

Yes, you do. In a collaborative divorce, each spouse must be represented by an attorney. During the divorce, there will be several meetings involving you, your spouse, your lawyers, and any other professionals needed. These will generally require the guidance of a qualified lawyer for your benefit.

Collaborative divorce attorneys are skilled in guiding negotiations and managing conflict. Seek an experienced family lawyer for assistance with collaborative divorce. An attorney can provide you with the legal services needed for your particular divorce issue. They can also keep you updated regarding any changes in the law that might affect your case.