The idea behind a Collaborative Divorce is that the divorcing parties, with the help of their respective attorneys and other professionals, engage in a non-adversarial process to resolve their dispute privately and without going to court. In Collaborative Divorce each spouse has the support, protection, and guidance of his or her own lawyer through the process.
It is important to understand that the decision to enter into a Collaborative Divorce requires the spouses and their lawyers to sign a binding agreement committing themselves to follow through with this process and resolve all issues without court intervention. This collaborative contract requires the attorneys involved to withdraw from the case if settlement cannot be reached which means the spouses must get new attorneys and essentially start over. This is what makes the process unique and cutting edge because once you decide to do this, you are invested in the process. This agreement is the cornerstone of the process and is essential to the collaborative method.
An advantage of the Collaborative Divorce is the use of jointly retained, neutral professionals (experts) for issues requiring expertise such as valuation of closely held businesses, commercial or residential appraisals or guidance on parenting issues. These experts use their training and expertise to assist both parties in obtaining a knowledgeable settlement.
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.