Divorce is often difficult and expensive, but it does not have to be.
Collaborative divorce is a new process that allows couples to work together to reach a settlement without going to court.
This process can save both parties time, money, and emotional stress.
In this article, we will explore what a collaborative divorce is, how it works, its pros and cons, and why it is becoming so popular.
What is a Collaborative Divorce?
A collaborative divorce is a process that allows couples to work together with trained professionals to reach an agreement on their divorce settlement without going to court.
The process involves negotiations and discussions that take place in a neutral setting. This means that the process is not adversarial, and the goal is to reach a marital settlement agreement that works for both parties.
The goal is to avoid the adversarial nature of traditional divorce and instead focus on finding a solution that works for both parties. Unlike traditional divorce, which is often contentious and litigious, collaborative divorce emphasizes cooperation and transparency.
Both parties agree to work together to find a solution that meets their needs and those of their children.
How Does Collaborative Divorce Work?
The collaborative divorce process typically involves the following steps:
The Parties to the Divorce Agree to Attempt the Collaborative Divorce Process
The parties involved generally select the collaborative process to negotiate a resolution of their divorce without having to go to court and have a ruling imposed on them by a judge.
The collaborative divorce process involves good faith negotiation in face-to-face settlement conferences involving only the parties, their lawyers, and any other professional members of the collaboration team.
The Parties Sign a Collaborative Divorce Participation Agreement
All the parties sign a Collaborative Participation Agreement. In the agreement, the parties agree to the following items:
1. Agree to a non-adversarial settlement process.
The agreement should reflect that parties are committed to settling the issues arising from the dissolution of their marriage in a non-adversarial, confidential, and respectful manner.
The parties agree to conduct themselves with honesty, cooperation, integrity, and civility, focusing on the well-being of the entire family.
2. Agree to No Litigation
The parties agree that while settlement negotiations are ongoing, they will not file for divorce or seek relief from the court.
3. The Attorneys Agree Not to Represent the Parties if the Case Goes to Court
The attorneys should also agree that they will not represent either party if the matter proceeds to court.
4. Agree to Full Disclosure of All Financial Issues
For the process to be successful, the parties must be open and honest about their finances.
The agreement will require a complete disclosure of the parties’ finances. All assets, debts, and other financial information must be disclosed. The failure to disclose all financial information can be the basis for the termination of the process.
5. Agree to the Use of Experts and Third Party Consultants.
In the collaborative process, the parties agree to hire and use neutral experts to help get the divorce settled. The agreement should outline the experts to be retained and how they will be compensated.
The types of experts that are typically hired are:
- Mental health professionals: Mental health experts may be retained to help settle issues regarding emotional issues and support of the children.
- Divorce coaches or therapists: These professionals can help the parties manage the emotional and psychological aspects of the divorce process. They may provide support, guidance, and techniques for effective communication.
- Financial experts: These professionals can provide guidance on financial issues such as property division, tax implications, and spousal and child support. They may be accountants, financial planners, or business valuation experts.
- Child specialists: These professionals can provide insight into the needs and wishes of the children involved in the divorce. They may be child psychologists, social workers, or family therapists.
- Legal experts: While collaborative divorce is designed to avoid litigation, each party may choose to have their own lawyer to provide legal advice and representation.
The collaborative agreement will allow the parties to keep all information and discussions made during the process confidential. Anyone involved in the process cannot be called to court as a witness if a settlement is not reached.
Collaborative Divorce Settlement Meeting
The next step is the process of meeting and resolving issues during the Collaborative Divorce meeting.
During this meeting, the parties and any experts will sit down together and talk through the issues that are agreed to and the issues that are in dispute.
The process is designed to encourage open conversation and an opportunity to reach an agreement that results in a divorce settlement.
Do You Need an Attorney for a Collaborative Divorce?
In a collaborative divorce, each party typically has their own attorney specially trained in the collaborative process.
Collaborative attorneys are different from traditional litigators in that they are committed to working cooperatively and respectfully to help the parties reach an agreement.
While it is not strictly required to have an attorney for a collaborative divorce, it is highly recommended.
Collaborative attorneys can provide valuable legal advice and guidance throughout the process. They can also help ensure that the final agreement is fair and legally binding.
The attorneys in a collaborative divorce can also prepare the settlement paperwork if a settlement is reached. This may include a separation agreement, parenting plan, or property settlement agreement.
What are The Benefits of Collaborative Divorce?
There are various procedural, substantive, and psychological benefits to using the collaborative law model in the divorce process.
Some of the benefits of a collaborative divorce offers include the following:
- Reduced conflict: Collaborative divorce is designed to minimize conflict and encourage cooperation between both parties.
- Lower costs: Since collaborative divorce avoids litigation, it is often less expensive than traditional divorce.
- Faster process: Collaborative divorce can be completed more quickly than traditional divorce, which can take months or even years to finalize.
- More control: Collaborative divorce allows both parties to have more control over the outcome of their divorce rather than leaving it in the hands of a judge.
- Better for children: Collaborative divorce is often less stressful for children since it avoids the contentious court battles that can be traumatizing for them.
- Privacy: The meetings during the collaborative process generally occur at one of the collaborative attorney’s offices, allowing the individuals involved to maintain their privacy. Due to the lack of resolution in a courtroom, the parties can maintain their privacy. The parties decide what goes into the paperwork, which becomes a public record.
What Are The Disadvantages of Collaborative Divorce?
While collaborative divorce has many advantages over traditional litigation, there are some potential disadvantages to consider.
Here are a few examples:
- Not suitable for all couples: Collaborative divorce requires a high level of cooperation and trust between the parties. If there is a history of abuse, manipulation, or dishonesty, collaborative divorce may not be appropriate.
- It can sometimes be more time-consuming: Collaborative divorce requires multiple meetings and negotiations, which can take longer than a traditional litigated divorce. This may not be ideal for couples who want to finalize their divorce quickly.
- No guarantee the case will settle: Even with the best intentions and efforts, collaborative divorce may not always result in a successful settlement. If the parties cannot reach an agreement, they will need to hire new attorneys and start over with the litigation process.
- Costs: While collaborative divorce may be less expensive than a traditional litigated divorce, it can still be costly. The fees for attorneys, financial experts, and other professionals involved can add up.
- Either party can quit the process at any time: Collaborative divorce is a voluntary process, which means that if one party decides to leave the process, there may not be any legal recourse or leverage to enforce the agreements reached during the collaborative process.
Q: How is collaborative divorce different from mediation?
A: Mediation involves a neutral third party who helps both parties reach an agreement. Collaborative divorce involves each party having their own lawyer but working together to settle.
Q: Is collaborative divorce right for everyone?
A: No, collaborative divorce is not suitable for everyone. It works best when both parties are committed to working together to find a solution.
Q: What happens if we can’t reach a settlement through collaboration?
A: If both parties cannot reach a settlement through collaboration, the process ends, and both parties must find new lawyers to represent them in court.