Collaborative Divorce is a process that people can use for divorce, child custody, child support, property division, and any other outstanding disputed issues between them incident to their separation. It will keep you in control of the terms of your divorce or custody plans, and it will keep you out of the courtroom.
What is Collaborative Divorce?
Collaborative Divorce is a way for couples to resolve their divorce or other family law disputes respectfully and peacefully - without going to court. The process generally involves you and your spouse or partner working together with your respective attorneys to settle all of your outstanding issues outside of court. The Collaborative Process can be used to resolve divorce, child custody, child support, property division, spousal support issues, and other related family law matters. The heart of Collaborative Divorce is utilizing interest-based negotiation, discussed in more detail below [hyperlink to discussion], in a safe and respectful environment outside of a courtroom, with the guidance and support of experienced family lawyers and other professionals trained in the collaborative process, to create lasting, durable, healthy, and sometimes outside-the-box solutions for couples who have made the difficult decision to divorce.
Collaborative Divorce is NOT only for couples who can agree. Just because you and your spouse or partner can’t agree to anything on your own or you think your spouse or partner would never “collaborate” with you on anything does not mean that Collaborative Divorce is not for you. Do not be mislead by the term “Collaborative” Divorce. This process does not avoid the conflict of a divorce. You will have to deal with that conflict no matter what process you choose for your divorce. Collaborative Divorce is a process by which you, along with professionals specifically trained in this process, uncover the sources of conflict and address and deal with them to create a workable agreement that allows everyone to transition into and move on with their post-divorce lives in as healthy and durable a way as possible.
Ok, so what is Collaborative Divorce?
The process is basically a series of meetings between you, your spouse or partner, and your lawyers (as well as other associated professionals if you are using in a Team Based Collaborative Divorce. Absolute confidentiality is maintained. The early meetings involve gathering information. Usually this includes compiling complete financial and property information as well as any specific or particular needs of your children. The next step is a process of identifying what you and your spouse or partner need in terms of finances, parenting or custody schedules, etc. so that everyone knows what issues will have to be addressed and resolved in order to come to a final agreement that fully addresses everyone’s needs and concerns. After that, there is generally a period of brainstorming solutions to each need or concern that was identified. The brainstormed ideas are then evaluated, critiqued, examined, and discussed until only the best and most workable solution possibilities are identified. Those are then further refined and discussed until they are finally incorporated into a written settlement agreement. That agreement is filed in accordance with the procedures as may be required by the court.
What is a Participation Agreement?
The Participation Agreement is one of the features that distinguishes Collaborative Divorce from other processes. The agreement is signed by you and your spouse or partner and your lawyers, usually during the very first four-way meeting. The agreement outlines the process and guidelines everyone will observe during the Collaborative process. Generally, the agreement requires everyone to submit complete financial information, to maintain absolute confidentiality, to behave respectfully during all meetings, and most importantly to disqualify the lawyers from representing you or your spouse in court (except to obtain the final divorce decree).
Why would I agree to disqualify my lawyer from representing me in court if I can’t settle?
The disqualification provision is one of the key features that makes the Collaborative Divorce process so different and successful. First, it removes the process from the adversarial court system. When everyone starts out knowing that fighting it out in court is not an option, everyone starts out with the expectation and goal of reaching an agreement. Second, it means everyone is committed to and invested in making the process work. For example, because he or she is disqualified from representing you in court, your lawyer cannot benefit financially by encouraging you to file motions or draw out the process. Neither can your spouse or partner’s lawyer encourage them to file actions against you for that matter. You and your spouse or partner are also likely be more open to reaching an agreement because of the threat of having to start back at square one with new lawyers and nothing to show for the money you have already spent in legal fees if you cannot compromise or come to an agreement.
How is Collaborative Divorce different than mediation or other alternative dispute resolutions?
To begin with, the Participation Agreement and disqualification of your lawyers from going to court make it different, as outlined above. Beyond that, a key difference is the use of “interest-based negotiation.” Traditional “position-based” negotiations are based on opposing positions competing against one another and usually result in some form of compromise (or no agreement at all). Compromise can result in split differences, with everyone getting half of what they wanted or deserved and no one being fully satisfied. More creative “interest-based” negotiating can sometimes give everyone what they want by identifying and satisfying the underlying interests behind the positions.
A common illustration of this concept involves a couple who are in a dispute over a single item, usually a piece of fruit. They take their dispute to a third party who listens to their arguments and decides to cut the fruit in half, giving one half to each. This is a compromise. On the other hand, interest-based negotiations might reveal that the underlying reason each person wants the fruit is because they actually need a specific part of it, and as it turns out, they each need a different part. So the end result is that the fruit can be divided so they each get the specific part they need and both are completely satisfied.
In the Collaborative Divorce process, this concept is utilized to help you and your spouse or partner create a long-lasting, durable, effective, and healthy arrangement that can maximize the long-term emotional, financial, and legal health of everyone involved.
In addition, a Collaborative Divorce utilizes voluntary disclosure of information. Everyone involved is required by the Participation Agreement to be open and to disclose all relevant information as may be required. This can significantly reduce your costs when compared to the more traditional litigation model of information gathering called “discovery” that uses subpoenas, depositions, interrogatories, expert opinions, etc. Removing the threat of being taken to court and focusing on addressing each person’s needs and goals distinguish Collaborative Divorce from other methods of divorce.
This sounds good, but what if I know my spouse will never agree to this?
Collaborative Divorce can be successful even for couples that are facing a high-conflict divorce. Virtually every divorce is the result of some level of conflict or inability to agree. What’s more, you are going to have to deal with each other to some extent no matter which method of divorce you choose. The advantages to a couple who can hardly stand to be in the same room with each other are the same as they are for people more able to agree. You retain control over what the final agreement says. You avoid the antagonistic and expensive threat of back-and-forth litigation, which can save you money in the long run. Perhaps most importantly, it allows you to communicate with each other in a structured, supervised, and controlled environment with the support and guidance of professionals trained to help you get past your differences and do what is best for everyone involved. Particularly if you have children together, the Collaborative Divorce process creates a structured environment where the impact on the children, particularly in a high-conflict, high-emotion divorce, can be minimized and the children’s interests can be protected.
That said, in order for this process to work for you in a high-conflict situation, you and your spouse must both at least be able to maintain a respectful working relationship during the process, and agree that it is important to have all the information “on the table” and to be willing to disclose all relevant information fully. You do not have to like each other to be able to recognize the benefits of this process and be willing to participate fully.
As with any legal decision, it is very important that you seek legal advice or educate yourself on the various options for divorce and to make sure to choose the right method for you. Not every process will work for every situation.
What is a Full-Team Collaborative Divorce?
Sometimes the Collaborative Process involves not only you and your lawyers, but a team of trained professionals working together with you and your spouse or partner to create an agreement. You can choose to involve Divorce Coaches, a Child Specialist, and/or a Financial Professional, or a combination of these, to work with you and to lend their specialized expertise and training to help you make the best decisions for you and your family moving forward.
A Divorce Coach is a licensed mental health professional such as a counselor, therapist, psychologist, licensed clinical social worker, etc. who in addition to his or her professional training has received specific training in the Collaborative Divorce process. Each party usually hires his or her own divorce coach. Basically, their function is to help you deal with emotions which may be blocking the resolution of issues, to assist in strengthening and improving communication between the spouses and the team as a whole, and where children are involved, to help develop an appropriate parenting plan. Imagine having a trained professional whose specific job is to guide and help you through your divorce. Someone who understands the deep anger, sadness, sense of loss or betrayal, fear, confusion, bitterness, and every other reaction people commonly experience when going through such a difficult time. Someone who knows that at times, you cannot even look at your spouse let alone “collaborate” with him or her. The divorce coach helps you reduce your stress and to make decisions based on what is best for you and your children, not your emotional reactions. He or she can also intervene directly during a meeting to identify and address psychological roadblocks to agreement. A divorce coach is always an asset, but can be particularly invaluable in high-conflict divorces where you and your spouse have a high level of anger or animosity towards one another.
A Child Specialist is typically hired by you and your spouse or partner together to serve in a short-term focused capacity to advocate for your child and help in developing an appropriate custody and parenting plan by providing the parents and team direct information from your child about his or her needs. This allows your child to be heard during in the process of developing a parenting plan without having to experience feelings of divided loyalty. It also gives your child a safe and private place to ask questions, share emotions or feelings, and bring up concerns or fears about the entire process of divorce and the changes he or she will have to face and deal with.
A Financial Professional, also called a Financial Neutral, is a Collaboratively trained financial expert usually hired by you and your spouse together to help gather financial information and to educate you and your spouse on the various ramifications and consequences of your options so you can make informed decisions that best protect and address your financial needs and concerns. He or she helps gather the required financial information provided by you and your spouse, interprets the information for the team, and presents reports and scenarios to assist you and your spouse in making appropriate decisions.