What is a collaborative divorce?Collaborative divorce is the newest method of alternative dispute resolution in family law. The parties and their attorneys sign a participation agreement committing to resolve all divorce issues through cooperation and negotiation and agreeing not to litigate. This is accomplished through a series of conferences in which the parties and their team of collaboratively trained professionals 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?
- It is generally 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, as opposed to the expense of each side hiring their own competing experts.
- It is less time consuming. The collaborative divorce process can usually be accomplished in several sessions over a two- to six-month period. By comparison, traditional divorce proceedings may take more than a year to go to trial and years to complete appeals.
- Collaboration 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 than any order that would be issued by a judge after a contested court proceeding.
- It lays the groundwork for a better future. There is no pain-free way to end a marriage, but by working cooperatively and treating each other with respect through this process, you and your spouse will be laying the groundwork 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 is typically assembled to assist the parties in understanding and resolving their disputes. In addition to the parties’ attorneys and their facilitator, 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. This cuts down on the expense of expert assistance and avoids a potential “battle 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, their attorneys and their collaborative facilitator 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, their attorneys and the other professionals who are part of the collaborative team. A participation agreement 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 joint neutral experts.
- If an impasse is reached and litigation becomes necessary, the collaborative attorneys will withdraw and litigation attorneys will be 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 that 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.
Is collaborative divorce the best choice for you?
Although the collaborative divorce process can be much more expensive than pre-suit mediation, in some instances it may be better suited for cases involving high dollar permanent alimony, complex property division, and other similarly complicated issues, because in addition to a facilitator, you have legal counsel on hand to make suggestions, evaluate options, and watch out for your legal interests. However, collaborative divorce, like mediation, is not for everyone, particularly if you have been a victim of domestic violence, if there is a history of significant financial misconduct, or if there is a history of serious mental illness.
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