A collaborative divorce is a voluntary process that allows a couple to settle their dispute without litigation. Instead of relying upon the court and judges to resolve disputes and make decisions for them, the couple gets to outline the direction, priorities, deadlines and outcomes for themselves.
How the Collaborative Process Works
Typically the collaborative divorce process starts by each party hiring a collaboratively trained attorney. The parties will then jointly agree to a collaboratively trained mental health and financial professional who will be neutral parties in the process. This is typically the core team guiding the parties through the process until resolution.
Once the core team is assembled, the parties will be involved in a series of group and individual meetings with the attorney, and each of the neutral professionals.
The first meeting will be a group meeting to set ground rules, goals and identify tasks for each person. The parties will sign a participation agreement which provides the framework for the process and includes an agreement to full disclosure, honest communication, confidentiality and to not engage in any divorce litigation during the collaborative divorce process (and put it on hold if it has already begun).
The initial meeting will be followed a series of individual and group meetings based upon the unique needs of the parties. For example, if there are significant financial complexities or business matters, the financial professional may take a larger role in analyzing those aspects. If there are challenges with parenting, scheduling or child issues the mental health professional may take a more involved role. Ultimately the parties will receive the advice they need at the time they need it.
The process will continue with a series of group meetings followed by individual meetings with professionals until a resolution is reached. Other professional neutrals can be brought in as needed if there are special situations that need to be addressed (ie, bankruptcy, immigration, tax situations, business valuation, etc.).
Collaborative Divorce Is Not Mediation
While collaborative divorce and mediation may appear to be similar in some ways, they take different approaches to settling disputes. Mediation is usually much shorter in duration and involves a lot of positional bargaining (I’ll give you this if you give me that). Even if mediation is successful, the effects of positional bargaining can leave both parties feeling they have “lost.” Divorce mediation is also usually just one step in a litigated, adversarial, process. Lawyers and clients participating in divorce mediation are always aware of the impacts mediation can have on the litigation.
In collaborative divorce, the parties sign an agreement that aligns the interests of everyone participating together (the parties, attorneys and neutral professionals) and focuses on working the best solutions for each party’s goals and needs.
There can really only be two outcomes from a collaborative divorce process because the process will continue until one is reached.
- Agreement. Once an agreement is reached, a formal settlement agreement will be signed by the parties and legal paperwork will be filed with the court to finalize the legal aspects of the divorce. Usually, the signed settlement agreement is not filed with the court for privacy reasons, but it can filed later if enforcement or modification of the agreement is needed.
- No Agreement. If the parties determine they cannot reach an agreement, they will hire litigation attorneys and proceed through the traditional litigated process.
Even though we said there were only two outcomes, there is always the possibility that the parties could reconcile, decide to stay married and drop the divorce process completely.
Collaborative Divorce Benefits
There are lots of benefits and they vary from person to person. Here are a few of the common ones:
- Control. The two parties are in control of the process, not a judge or third party. Professionals are there to help facilitate and provide a framework for a solution but the parties are in control.
- Privacy. Because the process is an alternative to court, the process is done privately and the resulting agreement is often not even filed with the court (it can be later if enforcement or modification of the agreement is required).
- Cost. It can be less expensive for couples with complex financial, business interests or child/parenting conflicts because the couple will be working closely with third party professionals who are neutral to the process and can assist in evaluating the situation and finding creative solutions. Working with these neutral parties in the collaborative format is often less expensive than litigating the same problems in the court system with dueling efforts.
- Recognized Solution. There are lots of creditable organizations and a long list of professionals in many communities who are trained in collaborative divorce and have a history of success.
- Focus on The Future. The collaborative divorce process focuses on planning for the future instead of assigning blame for the past.
Risks of the Collaborative Divorce Process
Here are some of the more common risks associated with the collaborative divorce process:
- Sincerity to Participate. Participants have to agree to be open and be willing to accept the separation.
- Cost of Failure. If the process fails to be successful, added time and expense will be involved in hiring a new lawyer and litigating the divorce in the traditional way.
Get Experienced Advice on Collaborative Divorce
If the collaborative process may be right for you or if you would like to discuss it in more detail, please contact our office. Attorney Lori Caldwell-Carr is collaboratively trained and actively involved in the collaborative law community.
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