What Is a Collaborative Divorce?
"Collaborative Law" is an alternative dispute resolution process for resolving dissolution of marriage disputes. The collaborative process involves an interdisciplinary approach to negotiation, in which each spouse retains a separate lawyer to help them reach an agreement that satisfactorily resolves the concerns most important to each of them.
Lawyers who practice in the field of Collaborative Divorce have special training in the collaborative law process. In addition to their attorneys, the parties work together with other professionals who have such training, including financial professionals and mental health professionals, to collect and share information. A financial professional assists the negotiations by providing impartial guidance on financial and tax matters. Mental health professionals coach the parties with their communications and the psychological/emotional aspects of the negotiations and in negotiating a parenting plan.
At the outset of a Collaborative Law engagement, the lawyers and their respective clients sign binding agreements defining the scope and purpose of the lawyers' representation: to help the parties engage in creative problem solving aimed at reaching a negotiated agreement. The parties agree to use all of their efforts to reach a mutually acceptable settlement out of court. During the process, although the lawyers remain advocates for their respective clients and are bound by all applicable professional standards and ethical mandates, they share a joint commitment to keep the process honest, respectful and productive on both sides. That commitment is confirmed in the participation agreement signed by the parties and all of the professionals at the start of the collaborative case. The agreements to be respectful, negotiate in good-faith, provide full and early disclosure of relevant information, and refrain from threatening litigation are the foundation of the collaborative law process.
If either spouse elects to take matters to court, the collaborative process terminates and the lawyers cannot act on behalf of either client in court proceedings against the other. This is also true if the participation agreement is violated by either party, or if for any reason a successful resolution cannot be reached. Part of the value of the collaborative process comes from the trust created in negotiations because the parties do not have to fear that they will one day face the other party's lawyer in an adversarial proceeding in court. Information shared in the collaborative process is considered confidential settlement negotiations and is not subject to discovery.
The idea behind collaborative divorce is to bring the issues that matter to the parties, their goals and their priorities, to the table in a constructive way. With the assistance of the specially-trained collaborative team, the spouses work in cooperation with each other rather than as adversaries, so they can focus on problem-solving and solutions for their family in a non-hostile manner and environment. The couple themselves are in charge of all decisions.
While Collaborative Divorce is one of a number of methods for achieving a negotiated settlement in divorce, it can be especially appealing to those who feel they can work together with their spouse in a respectful manner to achieve an agreement. Along with a full collaborative team – attorneys, financial specialist, coaches and child specialist, if needed – divorcing couples can use all of the professional resources to brainstorm possible options in addressing their assets and debts, and make agreements each can live with as they move forward from a one-household to two-household family system.