The idea behind a Collaborative Divorce is that the divorcing parties, with the help of their respective attorneys and other professionals, engage in a negotiated process to resolve their divorce privately and without going to court. The focus and objective is to produce solutions that meet a family’s needs, especially the children, in addition to each parties’ needs, within a strictly confidential and transparent environment.
So often divorce is riddled with emotions that have been bottled up for a long time, or, one spouse is very ready to divorce while the other is struggling deeply. Collaborative divorce enables spouses to end their marriage legally, financially and emotionally by keeping relationships that you both value most at the heart of the process.
The Collaborative Process explained:
Who is Involved?
In Collaborative law the spouses each retain a lawyer specifically trained in the collaborative process. Your lawyer is there to provide you legal advice and support. The key difference between the lawyers’ role in collaborative vs litigation is that in the collaborative model neither lawyer is going to go to war against a spouse. The lawyers will instead work on the shared goal of finding acceptable resolutions that meet the needs and interests of both spouses and the children, if any. Thus the lawyers while still individually representing a spouse, share a goal of finding resolutions that work for both spouses.
Other professionals are added to the process, if needed. A financial professional and a mental health professional are common. They become part of the “team” of professionals and play an important role in helping resolve financial issues such as alimony and property division as well as emotional issues and children’s issues. They serve as neutrals in the sense that no professional is there on behalf of either spouse but also share in the primary goal of settling the case in a way which satisfies both spouses and works best for the family.
Collaborative practice consists of a series of meetings between each spouse and each neutral professional and each spouse and their attorney. Then, everyone will come together for a series of full team meetings. Collaborative professionals are specifically trained to effectively manage communications and emotion and stress. More to it, their training helps empower the spouses to focus on their needs and interests which gives the Team a better understanding of why each of you desire a certain outcome or solution. By doing this, it cracks open the power of creativity. While the law is always discussed and outlined, the spouses and professionals search beyond it to create options that are tailored to the needs of your family thus eliminating an “imposed” solution type process which usually leads to resentment and negativity.
What you will find is that you are a crucial part of a skilled negotiation team acting honestly seriously, and with a high level of professionalism. The exprience will change you and it will undoubtedly change your relationship with your spouse for the better. This process is more than an investment in divorce, it is an investment in the future of your family.
Primary Principles of the Process
Collaborative Practice is based on several primary principles:
1. spouses pledge not to war. A litigated divorce is tantamount to war and will definitely scar spouses and the family.
2. spouses pledge to be transparent and forthcoming with all information. This is key because, per the Collaborative agreeement, the process will end if transparency is not maintained.
3. that the process is governed by a team approach meaning that every professional as well as the spouses are working for solutions that meet the needs and goals of all people involved in the divorce: the spouses, children, and any other interested parties.
The Collaborative Agreement
Critical to the collaborative process is the Agreement signed by all professionals and the spouses. In it, the parties and professionals agree to an out of court process and agree to keep things confidential and to be wholly transparent. Specifically, the attorneys for both spouses agree that they will withdraw from representation should any type of litigation be initiated. This means that if either spouse initiates any litigation, both lawyers must withdraw from representation and the collaborative process ends. The beauty of committing professionals and spouses to this kind of participation is that it commits them to a process focused solely on reaching amicable settlement and not on threatening litigation or preparing for litigation.
I will not tell you that the collaborative process is easy or smooth or quick or cheap. It is none of those things. But neither is litigation. In fact, litigation is usually a lot more expensive, drawn out, bumpy and difficult with the added layers of destroying your family and revealing your family’s inner most secrets and financial information. You cannot think your are going to “try” collaborative and see if it works out. You and your spouse together must make a decision to invest and commit to this process. You both must decide to use divorce professionals to work for you together rather than setting up the process to be adversarial and litigious causing each of you to live in fear and stress as to what your spouse and his/her attorney are going to do next.
I am trained in Collaborative law and continue to increase my skills through ongoing seminars, workshops and real life collaborative cases. As a member of the NEXT Generation Divorce practice group I am constantly exchanging ideas with like-minded professionals and establishing meaningful professional relationships that I bring to my clients and the collaborative cases with which I am privileged to participate.
What is the Difference Between a Collaborative Divorce and Mediation?
A mediation process can be structured quite similarly to a Collaborative Divorce but does not include the binding agreement. Therefore, either party, at any time, may quit the process and just move on with the case where it is and keep any attorney they may be using. While this rarely happens with mediations in which I am involved either as Mediator or Consulting Counsel, the potential is there. With the intense emotions that surround a divorce, it is tempting for one or both spouses to give up on a mediation process because there is nothing “forcing” them to stay. With the collaborative process, the binding agreement has ramifications if you step away from the process. This leverage is what is attractive for some and not so attractive to others.
How Do I Initiate a Collaborative Divorce?
1. Meet individually with a collaborative divorce attorney like me. I am trained as a collaborative attorney and have devoted the last six years to working exclusively in out of court processes. I understand the delicacies of protracted negotiation and the support client’s need to stay in such a process.
2. Refer your spouse to a collaborative attorney. Some are members of a select group or club, some choose not to be. Most important is your relationship with your collaborative attorney. There must be trust both ways. I have a network of attorneys who know me and work with me in a collaborative way. My practice is devoted 100% to non-litigation style problem solving for families. I have found that unless you both use attorneys who have worked together collaboratively previously or at least have been trained in the collaborative method, you run the risk of the process failing. You must be committed to the process and your attorney must understand the process is a negotiation process of give and take. Any strong-arming intentions during the process is not ever a good way to approach. You are not looking for a hired gun. You want someone who knows how to negotiate and who can be trusted to honor their promises to negotiate in good faith and with full disclosure.
Retaining appropriate attorneys is the most important part of the Collaborative case. On par with that is both spouses commitment to the process. There must be 100% commitment to the process and a resolve of the will to work through this situation collaboratively.
3. Begin the collaborative process with your attorneys. Issues are resolved through a series of joint sessions, including the attorneys, spouses and any other needed professionals. There is a planned schedule that keeps things moving to keep expenses down. There will be ups and downs and no process no matter what name you give it, makes divorce easy. This is a good process and best suited for more complex cases with significant financial assets or cases where the parents have deep differences about timesharing that may need outside experts and more sophisticated negotiation.