UPDATED: June 19, 2018
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Collaborative divorce is an alternative divorce process which helps couples avoid litigation and the excruciating conflict that often accompanies the traditional divorce process. The aim of the process is to encourage divorcing couples to resolve their issues and reach mutual, legally binding decisions without generating high legal fees and using excessive court time.
How to Start the Process
An individual who is interested in collaborating with their spouse rather than engaging in litigation should start by discussing the idea with his or her spouse. If the other spouse agrees to engage in the collaborative process, each party should find a reputable divorce law attorney that practices collaborative law. Each attorney will meet with his or her prospective client individually and assess the client’s goals for the case and make sure that there are no hurdles, such as mental incapacity, domestic violence, or other safety concerns that would compromise the collaborative process.
Once the attorney has determined that the collaborative process is an appropriate fit, she will have the client sign a retainer agreement which sets forth both the attorney’s fees and costs. While fees and costs will vary, the fees and costs are considerably lower than taking a contested case to trial.
The Participation Agreement
The attorneys in a collaborative divorce will provide a draft of a Participation Agreement to the clients, which provides a detailed explanation of each client’s rights and obligations during the process.
One of the most important elements of the Participation Agreement is that neither party is permitted to go to court or threaten to do so during the settlement process. If negotiations deteriorate and the parties decide to litigate their case, neither attorney will serve as trial counsel when the matter is litigated in court and the parties will be required to find new attorneys to handle their cases.
The Initial Settlement Conference
After both attorneys have met with their respective clients, they will arrange an initial settlement conference where both attorneys and the couple will meet together. At that initial meeting, the attorneys read and explain the Participation Agreement to the parties and give them an opportunity to ask any questions they may have. If the parties still want to proceed with the collaborative process, they will sign the Participation Agreement at that initial conference.
Collaborative Divorce and Negotiations
After the initial conference, it is common for the parties to meet for interim conferences to exchange financial information in preparation for future conferences. After the parties have exchanged all of the necessary financial information, the parties and the attorneys will meet to negotiate the substantive issues of the case such as child custody, visitation, child support, alimony, and division of property and debts.
During these substantive conferences, if necessary, the parties can retain the services of a neutral expert to provide valuable information regarding the issues of the case. For example, a parenting coordinator can advise the parties on how a particular visitation arrangement would affect the parties’ three-year old son, or a real estate appraiser can evaluate the market value of the marital home.
During substantive negotiations, the attorneys focus on the parties’ underlying concerns rather than the parties’ positions. Instead of focusing on the fact that the wife insists that the husband pay her at least $2,000.00 per month in alimony, the focus is on the wife’s concern that she will be unable to pay her expenses without her husband’s income.
Though the attorney’s role in the collaborative divorce process is not that of litigator, he is nonetheless a zealous advocate for his client. He will educate his client about the law and present her with options that will help her fulfill her goals in the case, while simultaneously protecting and facilitating the process.
When the parties reach a resolution on all of the issues in the case, the attorneys prepare a written agreement reflecting that resolution. The parties will review and sign the agreement and the attorneys will file it with the court along with the legal pleadings for the divorce action. Once both parties sign the agreement, it is legally binding on both of them.
After the appropriate paperwork has been filed with the court, the parties may be required to have an extremely brief court hearing. At the hearing, they will testify that they freely and voluntarily entered into the agreement. The judge will subsequently enter an order dissolving the parties’ marriage and adopting their agreement.
In addition to saving time and money, collaborating to come to a fair settlement for both parties is a good way for parties to have their interests adequately represented while at the same time protecting their relationship with each other and their minor children in the future.
During litigation, many spouses forget that although they are severing their marriage, their ties as parents remain permanently. The result is sometimes conflict that makes healthy parenting difficult. Collaborative divorce by its nature prevents the discord that sometimes results from the adversarial nature of litigation and benefits both spouses as well as their children.