Collaborative Divorce is an alternative divorce process that prevents you from having to go to court and litigate your case. Collaborative Divorce replaces the adversarial and combative legal system with an approach that permits people to resolve their disputes respectfully and without the hostility and anger often caused by litigation. 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 attorneys’ 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 than 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 groundwork for a less stressful future; one in which you can better parent your children.
What is the difference between Collaborative Divorce and Divorce Mediation? Unlike divorce mediation, collaborative divorce does not involve a third party neutral mediator/facilitator. Mediation may be voluntary, but is often court-ordered as part of the litigation process. Alternatively, collaborative divorce is by contract. The parties in a collaborative divorce contract agree to voluntarily provide all pertinent financial information during the collaborative process. In mediation, financial information is usually disclosed prior to mediation, either voluntarily or through formal discovery requests. 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.
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 forensic accountants, neutral financial advisors, mental health counselors, parenting specialists, child specialists, vocational experts, business appraisers, real estate appraisers and others, if needed. Most often the parties choose to retain a neutral joint expert and agree to share the cost of the expert. 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 they identify and discuss various issues, exchange financial information and other records, and explore settlement alternatives. 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 lengthy 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 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 on some of the issues, thus narrowing the issues which will need to be decided by the court. This saves 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? Collaborative Divorce is not for everyone, particularly 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 is a wise alternative for couples who want a civilized, respectful resolution of their disputes and to shield their children from the harm litigation can inflict.
This article was prepared by:Beth Reineke, Esquire Collaborative Lawyer Supreme Court Certified Family Mediator Board Certified Emeritus – Divorce & Family Lawyer 1003 W. Cleveland Street Tampa, FL 33606 (813) 205-6675 firstname.lastname@example.org
Used with permission.