Collaborative Divorce is a comparatively new way for married couples to resolve disputes respectfully, without going to court -- while working with trained professionals who are important to all areas of life affecting the divorce.
The heart of Collaborative Divorce (also called “no-court divorce,” “divorce with dignity,” “peaceful divorce”) is to offer individuals the support, protection, and guidance of their own lawyers without going to court. Additionally, Collaborative Divorce allows the benefit of child and financial specialists, divorce coaches and other professionals all working together on a team.
In Collaborative Divorce, core elements form the agreed commitments, which are to:
- Negotiate a mutually acceptable settlement without having courts decide issues
- Maintain open communication and information sharing
- Create shared solutions acknowledging the highest priorities of all
excerpted from The International Academy of Collaborative Professionals
Collaborative law, of which Collaborative Divorce is a part, has been described as an alternative dispute resolution (ADR) process guided by the uncompromising principle of a nonlitigation approach to problem-solving. Going to court is “off the table” as an option to resolving differences. The parties, as well as their counsel, sign a collaborative divorce participation agreement, promising not to go to court while they are negotiating a resolution to their conflict. If the collaborative law process breaks down because one party or his or her attorney feels compelled to litigate, the collaborative counsel who represents that party must withdraw. The collaborative divorce participation agreement states explicitly that collaborative counsel is hired for the sole purpose of negotiating a settlement and not for representing the clients in court.
The Collaborative Law Society, a network of independently practicing legal, psychological and financial professionals, notes in its brochures that collaborative divorce, also called collaborative law or collaborative practice, uses a teamwork approach to solve problems of divorce, property, support and children’s issues with grace, honesty, dignity and civility, without the costs and uncertainty of court litigation.
When spouses elect to utilize collaborative divorce, both of them sign a collaborative contract, a binding agreement (1) to share complete financial information and documents with each other; and (2) to hire the collaborative lawyers and other professionals only to give advice and help work out an agreement, not to litigate in court. If either person files a court case before all the issues are settled, the collaborative lawyers cannot be involved in it. The basic steps in a collaborative divorce, according to The Collaborative Law Society, are described as follows:
- Discuss Collaborative Divorce with your spouse. See if you both want to explore it.
- Find trained collaborative lawyers, psychologists and/or financial planners.
- Each spouse chooses and hires a collaborative lawyer.
- Both spouses sign the collaborative law contract.
If both spouses need help communicating about important decisions, they should consult with collaborative psychologists for communication coaching.
If either spouse needs help understanding family finances or future needs and resources, then both spouses should visit and consult with a collaborative financial planner together.
When the spouses are ready to deal with property, support, children’s issues, etc., they should return to the lawyers for advice and negotiations leading to a complete written settlement and usually a no-fault divorce.
It is important to note that the collaborative process is not just for divorce. Instead, it can be utilized for the following:
- Separation
- Temporary agreements
- Post-divorce issues
- Changing support, custody or visitation
- Unmarried partners
Collaborative law and collaborative divorce differ from mediation in several important ways. First, the collaborative client can rely on his or her lawyer every step of the way. In mediation, the parties have the option of being represented by counsel. Although most separating or divorcing parties choose to hire an attorney or coach to guide them through the mediation process, some decide to represent themselves, perhaps consulting with an attorney only on select issues or at the end of the mediation. Unlike collaborative counsel, a mediator cannot represent either party or give legal advice. A mediator can provide only legal information. Some mediators permit attorneys to be present throughout the mediation; many do not. Even if allowed to be present, attorneys often are requested not to participate.
In the collaborative law process, all the negotiations take place during four-way meetings with both parties and their counsel. Collaborative attorneys guide settlement meetings, gather documents, strategize with their clients, and manage the flow of their cases.
Collaborative law has been described as the “wave of the future.” No other alternative dispute resolution process has caught on so quickly or been adopted with such enthusiasm. Mediation enthusiasts struggled for years to gain acceptance, while attorneys resisted the movement even more than consumers.
In collaborative law, attorneys need not “give up” their clients to the mediator. Instead, they form a partnership with their clients to reach a nonlitigated settlement. The adversarial process is designed to drive a wedge between whatever remains of the marital and parental relationship. The opportunity for mutual trust and respect is shattered by trial preparation, interim court appearances, and the trial itself.
Knowledgeable individuals state that the collaborative law process “feels like a breath of fresh air.” The goal of maintaining a respectful, ongoing post-divorce relationship, especially but not exclusively between parents, requires that everyone behave with restraint and respect.
The collaborative lawyer is trained to work in a non-adversarial way with you as a part of your collaborative team. You and your spouse will each have your own collaborative lawyer. Your lawyer will listen to you and be your advocate; offer you legal advice about your rights and obligations; help you make informed decisions; support and guide you during your collaborative divorce, help you collect the information you need; and help you reach and complete your settlement. Your collaborative divorce team has specialized training to help you:
- Learn better ways to communicate
- Deal with your emotions
- Address your parenting and time-sharing concerns
- Develop a financial plan
- Answer questions you have about divorce
- Make informed choices for the future
- Create a parenting plan
- Reach agreements
In a series of meetings with your collaborative divorce team, you can settle your divorce without going to court.
