Many people have heard of mediation, but collaborative divorce is less well known. Collaborative divorce is a way to help the parties come to an agreement about matters related to the divorce. In a collaborative divorce both parties are represented by their own counsel, and the goal is to come to an agreement that both parties can live with rather than vying with each other to “win.”
A big part of collaborative divorce is keeping the parties committed to working out the issues themselves without going to or threatening to go to court. In a collaborative divorce the parties and attorneys usually sign an agreement that they will not bring the case to court. The parties still retain their rights to bring the matter to court if they are not satisfied with the collaborative law process. However, as part of the agreement the attorneys usually state that they will not represent the parties if the matter does go to court. That means that if the collaborative process fails, the parties will have to find new attorneys for the litigation process. This is an added incentive for everyone to try to settle their differences through the collaborative process.
There are different ways that collaborative divorce can be organized, depending on the situation. Generally with collaborative divorce the parties each have their own attorney but the parties also may be present and at the negotiating table at times. The parties and their attorneys will confer with each other together and separately to try to reach agreement on a divorce settlement. If the parties are having a difficult time with trying to reach consensus about important issues, they may decide to bring in a trained mediator to help move the process along. Depending on the situation the parties may also hire neutral experts such as appraisers, business valuation experts, and child development professionals.
There are several benefits to collaborative divorce, but also some risks. One of the major benefits is that it will often significantly cut down on the costs of the divorce. Without the lengthy court process, legal fees will usually be much less expensive than in a traditional divorce. Another benefit is that the parties themselves come to an agreement regarding the major issues in their divorce instead of leaving it in the hands of a judge. Many divorcing couples also prefer the tone of collaborative divorce, since the process is more cooperative and less adversarial. This may be especially true for couples with children who need to maintain an ongoing co-parenting relationship. Also, since collaborative divorce is essentially a settlement, the process will be finalized once the couples come to an agreement. Since there are no appeals, the parties are able to have a sense of finality once the agreement is reached.
However, there are also some risks to collaborative divorce. It may not be the best option for couples who are unable or unlikely to come to an agreement on the bigger issues in their divorce. It is also generally thought to be unsuitable for couples who have a history of domestic violence or substance abuse. Another concern that some have raised about collaborative divorce relates to the withdrawal provision. Since attorneys will have to resign if the collaborative process does not work, they have a vested interest in settling, even if it may be to the detriment of their client. Collaborative divorce has both risks and rewards for participants, and whether it works for you will likely depend on your particular circumstances.
The process of collaborative divorce begins with each spouse hiring their own attorney that is willing to engage in the collaborative process. Everyone involved will sign a collaborative agreement that usually includes the provision that the attorneys will withdraw representation if the matter ends up going to court. The spouses will first speak with their own attorneys alone and confidentially. Then the four individuals (the spouses and their individual attorneys) meet together and start trying to reach agreements about the important issues. The process may only take a couple of meetings or may take many. Other professionals may be brought in as the need arises.
