What is a Collaborative Divorce?Collaborative divorce is an alternative divorce process. The parties and their attorneys sign a Participation Agreement committing to resolve all divorce issues through cooperation and negotiation and not litigation. This is accomplished through a series of conferences in which the parties work together toward a negotiated settlement. In the event the process is not successful, the attorneys must withdraw from representation, and the parties must hire new attorneys before proceeding with litigation.
What are the advantages of Collaborative Divorce?
- In general, Collaborative Divorce is less expensive than traditional divorce litigation. For instance, parties agree to share pertinent information freely, avoiding the necessity of formal discovery conducted by their attorneys. Less work means less attorney’s fees. Additionally, if experts are needed, the parties will often retain joint experts, thereby avoiding duplicative work and fees.
- Less time consuming. The Collaborative Divorce Process can usually be accomplished in several sessions over a 2-6 month period. By comparison, traditional divorce proceedings may take more than a year to go to trial and years to complete appeals.
- Results in a better settlement. Every family is unique and every family deserves a settlement tailor made to their particular needs. The collaborative process produces final agreements that are typically more detailed and complete that any order that would be issued by a judge after a contested court proceeding.
- Lays the groundwork for a better future. There is no pain-free way to end a marriage, but by reducing stress, working cooperatively, and treating each other with respect during this process, you and your spouse will be laying the ground work for a less stressful future; one in which you can better parent your children.
What other professionals make up the Collaborative Team?
During the Collaborative process a team of professionals may be assembled to assist the parties in understanding and resolving their disputes. These professionals may include mental health counselors, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, appraisers, and others, if needed. Most often the parties choose to retain neutral joint experts and to share the cost of the experts. This cuts down on the expense of expert assistance and avoids a potential war of the experts.
How does the Collaborative Divorce Process work?
First, both spouses meet with their collaborative attorneys to discuss their needs and concerns. The parties and attorneys enter into a Participation Agreement agreeing to use the Collaborative Divorce Process. Then, the couple and their attorneys proceed to meet in four-way sessions for the purpose of reaching a settlement without involving the court. During these sessions financial information and records are exchanged, issues are identified and discussed, and settlement alternatives are explored. When an agreement is reached one of the attorneys will draft the parties’ Marital Settlement Agreement detailing the particulars of the parties’ verbal agreement. This legally binding written agreement is then submitted to the court for approval without having to go through a long court hearing.
What is a Participation Agreement?
A Participation Agreement or collaborative commitment agreement is the key feature of the Collaborative Divorce Process. This agreement is signed by the parties and their attorneys and typically provides that:
- Each party will voluntarily disclose all pertinent financial information.
- All efforts will be made to negotiate a divorce agreement without going to court.
- If experts are required, the parties will hire one neutral expert.
- If an impasse is reached and litigation becomes necessary, the collaborative attorneys will withdraw and litigation attorneys hired to represent the parties in court.
What happens if settlement can’t be reached?
Even if you are not able to reach a full settlement on all issues, it may be possible to reach a settlement of some of the issues narrowing the issues which will need to be decided by the court. This will save time and money. As to the remaining disputed issues, they will need to be submitted to the court for resolution. The collaborative attorneys will withdraw from representation, and each party will hire a litigation attorney to present the disputed issues to the court. The mediator may be called upon to continue mediation of the contested issues once litigation has commenced.
What is the difference between Collaborative Divorce and Pre-suit Divorce Mediation?
Collaborative Divorce primarily involves the parties and their attorneys, a neutral facilitator, and a neutral financial professional, such as a CPA. All four professionals bill hourly. Pre-suit Divorce Mediation typically just involves the mediator and the two parties. Only the mediator is billing hourly, so Pre-suit Divorce Mediation is much less expensive than Collaborative Divorce. Collaborative Divorce is by contract. Pre-suit Divorce Mediation is voluntary, but most mediators have a contract for the parties to sign, setting out the terms and conditions pertaining to mediation. If a contested case is filed, mediation is mandatory, and in most cases the parties’ attorneys will be involved. The parties in a Collaborative Divorce and in Pre-suit Mediation contract to voluntarily provide all pertinent financial information during the process. Both Mediation and Collaborative Divorce may involve a series of conferences during which the parties work at identifying settlement alternatives. In both cases, if an agreement is reached a Marital Settlement Agreement is drafted. Similarly, if an agreement is not reached, neither the mediator nor the collaborative divorce attorneys may represent either party in litigation before the court.
Is Collaborative Divorce the best choice for you?
Collaborative Divorce is not for everyone. It is typically much more expensive than Pre-suit Divorce Mediation and takes longer, start to finish. Collaborative Divorce and Pre-suit Divorce Mediation may not be a good choice for you if you have been a victim of domestic violence; there is a history of significant financial misconduct; or there is a history of serious mental illness. Otherwise, Collaborative Divorce or Pre-suit Divorce Mediation are wise alternatives for couples who want a civilized, respectful resolution of their disputes and to shield their children from the harm litigation can inflict.
What issues can a collaborative divorce address?
A collaborative divorce will address all issues related to your separation and divorce, including the following:
- Alimony of all types, including temporary support and durational or permanent alimony
- Child support calculations, modification and enforcement
- Custody, visitation and time sharing, including interstate jurisdictional issues
- Pre-nuptial agreements, divorce agreements and formal legal separation agreements
- Marital property division, including allocation of retirement funds and joint assets and debts
- Parent relocation disputes
- Post-judgment modifications and enforcement of custody matters, child support or alimony
- Shared parenting arrangements
- Temporary relief, including spousal support, child support, custody and visitation, exclusive use of the marital home and access to marital assets while the divorce is pending