Collaborative Divorce

Collaborative Law

Collaborative divorce is a type of procedure in family law for parties that wish to undergo divorce in a cooperative manner. The process of collaboration allows the parties to agree to solutions regarding some of the various legal issues connected with divorce.  These may include distribution of property, child custody, support payments, and many other points of legal contention. Collaborative law is a new kind of dispute resolution with a structured, cooperative out-of-court approach. It is geared toward cooperatively and amicably resolving divorces among parties who agree not to go to court. It takes away the urge to fight and win in a courtroom setting. Rather, the objective is to reach a settlement that both parties find satisfactory.

Why Choose a Collaborative Divorce Process?

Collaborative divorce basically allows the parties to work out their differences in a way that is less confrontational. Each party is represented by their attorney, and a mediator may also be present to help facilitate the process. Once the parties reach an agreement or agreements on their issues, they can then present their conclusions to the judge, who can solidify the terms into a legally enforceable court order. Couples may wish to consider collaborative divorce for the following reasons:

• They want to avoid litigation expenses
• They want a quick divorce
• They want to spare themselves and their children the emotional trauma associated with prolonged litigation
• They want to have more power over their settlement as opposed to leaving it up to the courts

There are many difference in a collaborative divorce process and a traditional court litigation. In the collaborative divorce process:

• Both parties agree with one another that they will resolve the divorce without going to court and they will stay out of court the entire time
• The collaborative process sets out goals, objectives, and procedures that each party will follow throughout the entire process
• The process focuses on creating a solution to reach the important needs and goals of each party in a mutual way
• The collaborative process will also reach a solution in a efficient and fair way that each party agrees to
• Both spouses work as a team and not against one another

It's essential to mention that if a collaborative divorce settlement is not reached, the parties may pay more than they would have if they had litigated the case from beginning to end. They took the additional effort to resolve the case through a collaborative effort. They also may find that they spent more time settling if their collaborative efforts fail initially for the same reason. 

When Is Collaborative Divorce Recommended? Are There Any Drawbacks?

Collaborative divorce may be recommended when:

• The parties seeking divorce have only a few minor legal issues that need to be worked out
• The parties are able to communicate with one another in a peaceable and productive manner
• A faster and more streamlined process is desired
• The parties have individual needs or interests that they'd like to focus on more

On the other hand, collaborative divorce does have its drawbacks. The process is not always available in every jurisdiction and for all cases. Collaborative divorce is generally not recommended when:

• The parties have a legitimate dispute over marital property that needs to be resolved through the legal system
• There is a possibility of physical abuse or harm
• The parties are unable or unwilling to work with each other to reach a conclusion on a point of legal contention
• The parties have emotional or relational issues that prevent them from cooperating with one another in general

Participation Agreement

A participation agreement is an important document in a collaborative divorce case. This is a contract that lays out the rules and guidelines for the collaboration meetings. It is to be reviewed and signed by all the parties involved in the process, including the spouses and their respective lawyers.

The Participation Agreement that is entered into by parties set out commitments and agreements in the divorce. A Participation agreement usually includes provisions such as:

• The parties will act in their children's best interest when dealing with divorce related matters to try and minimize the emotional tension to their children because of the divorce
• The process of the divorce and the procedures each party will do
• what each parties lawyers will assist them with
• whether neutral mediators will be used
• how each party will communicate with one another

Collaborative Divorce Process

To begin a collaborative divorce process, it is recommended that both spouses become educated in the collaborative process by reviewing all the materials and resources. In addition, interview all the collaborative professionals that will be involved in the process to determine the impact the process will have on their children, finances, and how each party will communicate with one another.

After you and your spouse have agreed to the collaborative divorce process, retain a attorney for each party and meet with the attorney prior to the first collaborative meetings. Finally, schedule your first meeting to meet the entire collaborative process team and sign the collaborative participation agreement.

 The central focus of the collaborative divorce process is to amicably resolve the parties' differences regarding property, support (child and alimony), and custody in a secure atmosphere outside of court. The basic process is as follows:

• Each party hires its own attorney: An attorney who has experience with meditation is best to help advocate for your interests.
• Discuss the case with your lawyer: The lawyer must know what you wish to achieve through a collaborative divorce proceeding, what you're willing to compromise on, and what you must have.
• Sign an Amicability Agreement: This indicates that the parties are willing to use good faith and fairness in negotiating a resolution regarding their divorce in a collaborative law setting.
• Neutral Setting: It is essential that neither side feels that they are favored (or disfavored) during the proceeding. For this reason, all meetings must take place in a neutral place.
• Free Discussion: Parties can bring up any issues which may ultimately lead to a favorable resolution.
• “No Court” Agreement: The parties and their lawyers sign a “no court” agreement that requires the lawyers to withdraw from the case if it does not get resolved and goes to litigation.

What If the Parties Do Not Agree?

If the parties cannot reach an agreement after a good faith effort, they are unrestricted to continue litigation in court. The participation agreement does not preclude the parties from terminating the process to litigate the issue, but they must not make threats of litigation during collaboration efforts.

If either party terminates collaborative meetings, they must provide written notice to the other party and to all lawyers stating an intent to withdraw. The collaboration agreement usually includes termination provisions that dictate how this should be done.

The clients are advised from the beginning that they will have to obtain new attorneys if they cannot reach an agreement and choose to file for divorce hearings in court.