When you hear the word “divorce,” you probably have an image of what the process will be like. Perhaps you assume that each party will hire an attorney; take a polarized negotiation position; and repeatedly go to court to fight over issues of property division, custody, and spousal support. Perhaps you fear that after years of failed negotiation attempts, a judge who does not know you, your children, or your family will decide issues that affect every aspect of your life. Perhaps you believe that litigation is the only method through which you can get what you want or are entitled to in a divorce. That belief is not true. There is another process: collaborative law.
What is collaborative law? Collaborative law is a dispute resolution process through which spouses can obtain a divorce and settle all related issues cooperatively.
Do I still retain an attorney in the collaborative law practice? Yes. Each spouse retains a collaborative law attorney to represent him or her. However, in addition to the attorneys, the spouses also retain additional professionals who will act as an interdisciplinary team to assist them in facilitating the divorce process.
Who is on the “team”? The parties may hire a mental health professional to act as a “coach.” The collaborative coach is not the parties’ therapist. Rather, the coach uses his or her professional training to assist the parties in managing their emotional or psychological issues that might impede the divorce process. The coach will facilitate communication and dialogue between the parties and other team members. If the parties have children, they may hire a child specialist, a mental health professional with specific training in working with children and families with children. The child specialist may assist the parties in creating a joint parenting agreement that works for all parties involved. The parties may also hire a neutral financial specialist, who assists the parties in gathering, understanding and analyzing financial information. The financial specialist may explain to the parties what their estate is worth and provide different options on how the estate can be divided.
What are some of the advantages of collaborative law? Perhaps the greatest advantage of collaborative law is that the parties control the process. The parties, together with the team of professionals, create the marital settlement agreement and joint parenting agreement. Therefore the parties – and not a judge – are making decisions that work best for them. As a result, the parties can generate creative solutions that are unique to their situations and families. Because the parties have worked together to resolve their issues through the collaborative law process, they are more likely to preserve some type of relationship after the divorce is finalized. Such a relationship may be important to former spouses who have children in common.
What are some of the disadvantages of collaborative law? The collaborative law process often requires face-to-face meetings with both spouses and the team of professionals. The parties have to be able and willing to sit down and communicate with one another. The parties also have to take an active role in the process, rather than having their attorneys fight it out for them. Also, because neither the parties nor the attorneys are reporting to a judge, formal discovery and court orders compelling the production of information are not available.
If the collaborative process does not work, can we go to court? Yes, but you will need to retain different attorneys and professionals. At the beginning of the collaborative process, the parties and attorneys agree to negotiate in good faith without going to court to resolve disputes. The parties and attorneys further agree that if either client chooses to go to court, all of the professionals will withdraw from the case.
Regardless of which spouse initiates the divorce process, it will be an emotionally draining experience for all parties involved. However, it does not have to be a knock-out fight in the courtroom. Collaborative law offers a choice for divorcing couples who want to have an active role in the divorce process.