What is Collaborative Divorce?
Collaborative divorce is an alternative solution for couples seeking to end their marriage in a respectful, non-confrontational manner. Like mediation, a core objective is to avoid the larger financial and emotional costs of traditional divorce litigated in a courtroom.
Unlike mediation, which is facilitated by a single neutral third party, the collaborative divorce process requires that each spouse retain a specially trained attorney to represent their interests. In some cases, other professionals are involved as well. Plans or threats to resort to court are forbidden. If this occurs, the collaborative process terminates and the lawyers are prohibited from any future involvement with the case. The couple must retain new lawyers and essentially start over.
Also referred to as Collaborative Practice, Collaborative Divorce began in the United States in the early 1990s. Since then it has grown rapidly. Over 22,000 lawyers have been trained in collaborative law worldwide. It has been used to resolve thousands of cases in the United States, Canada, England, Wales, Australia, and elsewhere. (Source: International Academy of Collaborative Professionals, Research Regarding Collaborative Practice, retrieved Dec. 2012.)
Who participates in the Collaborative Divorce Process?
In addition to the collaborative lawyers, other professionals that may be involved include financial planners, mental health practitioners, child advocacy specialists, and collaborative coaches. Collectively, they are referred to as the collaborative team. All team members, which includes the spouses, commit to working together respectfully and honestly to resolve disputed issues. The goal is to achieve the optimal outcome possible based on the needs of both parties.
Benefits of Collaborative Divorce versus Litigation
There are a number of advantages to the collaborative process particularly when compared to litigation. They include some of the same benefits inherent in mediation, which include:
- Reduced financial and emotional costs
- Increased decision-making by the spouses
- Opportunity to insulate children from negative aspects of the process
- Expedited time line
To read more about the benefits common to Collaborative Divorce and Mediation, please see the mediation section of this website (Click here: Benefits of Divorce Mediation versus Litigation.)
In addition to the benefits listed above, there is an important advantage unique to the Collaborative Divorce process. It’s about the mindset.
- A Different Mindset – Attorneys trained in Collaborative Divorce adhere to principles that promote non-court resolutions. They believe in the process because they know it can work without the hostility that often comes with litigation. They are further motivated to avoid litigation because they are compelled to withdraw from a case if a client chooses to go to court. As with all collaborative professionals, they strive for solutions acceptable to both parties. This win-win philosophy is a significant shift from traditional divorce cases in which each side battles to the bitter end with a winner-take-all mentality.
Both Mediation and Collaborative Divorce allow couples to have a level of control over their destinies because decisions are made jointly. Litigation does not because decisions are made by a judge.
While the underlying common goal is to reach a settlement that both spouses can live with, there are some noteworthy differences between Mediation and Collaborative Divorce.
|Attorney Participation||A single neutral third party – a trained mediator – facilitates the process. Separate consulting attorneys are usually only engaged for the final review of the settlement agreement.||Each spouse retains an attorney trained in the collaborative divorce model.|
|Legal advice||The mediator must remain impartial and cannot give legal advice to either party. However, if he/she is also an attorney, matters of law can be explained as it applies to the case.||Each attorney fully supports their client’s interests. They assist with the communication process and provide legal advice during settlement negotiations.|
|Who Should Consider||Couples who are ready, willing and able to honestly and respectfully discuss their issues and share information to reach an agreement essentially on their own but with the guidance of a neutral professional.||Couples who are ready and willing to honestly and respectfully discuss their issues and share information but one (or both) spouses is not able to effectively deal with the process due to emotional wounds or lack of financial or other knowledge. A dedicated collaborative lawyer on each side can help ensure a level playing field.|
To be clear, under certain circumstances alternative dispute resolution methods such as Mediation and Collaborative Divorce are NOT prudent options. These include cases of child abuse, domestic violence, substance abuse, or when one party is unwilling to commit to open, honest communication and information exchange.
How Does the Collaborative Process Work?
After considering options, both spouses agree to use the Collaborative method of divorce. While this is a seemingly obvious step, it is an extremely important one. Both parties must fully commit to the Collaborative Divorce process.
Each spouse then retains an attorney trained in Collaborative Practice.
A series of structured meetings take place based on an agreed upon schedule. Early on, all parties involved in the process sign an agreement which includes three essential commitments:
- To pursue a settlement in good faith without resorting to litigation.
- To maintain open, honest communication and information exchange.
- To contribute ideas and solutions that focus on the needs and concerns of both spouses.
This agreement is binding to the extent that if court proceedings are threatened by either side, the Collaborative professionals involved in the case must withdraw.
During the initial face-to-face meeting with all parties present, an agenda is created and priorities are established by the group. Primary issues generally include spousal support, child custody, child support, and property distribution. Decisions are made about what information needs to be gathered and made available for future meetings. Depending on the needs of the spouses, determinations are made as to whether other collaborative professionals need to be engaged in the process (e.g., financial expert, mental health specialist, child advocacy specialist, etc.)
Meetings continue on an agreed upon schedule and solutions to disputed issues are proposed and thoroughly discussed openly and honestly. Supporting data is examined and discussed as necessary throughout the process.
Once resolutions have been achieved on the disputed issues, a settlement agreement is drafted.
If no agreement can be reached, or if one of the participants is unable to fulfill their commitments (i.e., less than honest participation or lack of full disclosure,) the collaborative attorneys and other collaborative professionals withdraw from the process and the couple must basically start over, usually by retaining litigation attorneys. While this, of course, is not the desired outcome, it does happen. Going back to step one, that is why is it so important for couples to carefully consider their options and fully commit to the process if Collaborative Divorce is chosen.
Settlements Resulting from Collaborative Divorce are Legal Contracts
Once the settlement agreement is signed and notarized it becomes a legal binding contract. At that point, it can be filed with the court and incorporated into the divorce judgment.
How Long Does the Collaborative Divorce Process Take?
This is a difficult question to answer since every situation is different. As with mediation, factors that typically have the most influence on time frame are the quantity and complexity of disputed issues, amount of documentation to be compiled, and the capacity of each party to negotiate in good faith and compromise when necessary. Some cases are settled in just a few meetings while others take considerably longer. It is fair to say, however, that given the contentious nature of litigation and the scheduling constraints of the court system, Collaborative Divorce is generally faster route to ending a marriage than traditional divorce.
What is the Cost of Collaborative Divorce?
Once again, because every situation is different and so many variables can affect the time line, total cost is difficult generalize. Relatively speaking, because multiple attorneys and, potentially, other collaborative professionals are involved, Collaborative Divorce is typically more expensive than mediation. Conversely, due to court related fees, court schedules and legal proceedings that increase overall cost, Collaborative Divorce is usually less expensive than litigation.