Divorce is often a difficult and contentious process for spouses dissolving their marriage. But, a fairly recent approach, called collaborative divorce, is a positive alternative to traditional high-stakes, high-drama divorce litigation.
Collaborative Divorce
In a collaborative divorce a couple elects to end their marriage through a specialized collaborative process instead of traditional divorce proceedings in family court.
According to the International Academy of Collaborative Professionals (IACP), an international organization that promotes client-centered processes for resolving conflict, collaborative divorce has three key elements:
- A pledge not to litigate or go to court and the voluntary withdrawal of both spouses' attorneys if either spouse decides to litigate
- An open and honest exchange of information
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A commitment to respect both spouses' shared goals
Collaborative Divorce Process
When a couple begins collaborative divorce, each spouse is represented by a lawyer specially trained in collaborative law. Instead of serving as an adversarial advocate, however, each spouse's lawyer represents the interests of the spouse and also assists in negotiating a divorce settlement. Also, the couple may receive assistance in the negotiation process from a multi-disciplinary team of professionals including a financial advisor, child specialist or divorce coach.
The spouses and their respective attorneys sign a contract, sometimes called a collaborative stipulation or participation agreement, in which they agree to voluntarily disclose all financial and other information relevant to the divorce. This avoids the formal discovery process, which often is a time-consuming, expensive, and frustrating element of traditional divorce proceedings.
The contract also states that the attorneys will not represent the spouses if the couple chooses to end the collaborative process and pursue divorce litigation. This helps align the spouses and their collaborative team with the goal of reaching a divorce settlement out of court.
The negotiation process focuses on the spouses' desires and common interests until an agreement is reached. The agreement is then recorded in a written document and filed with the court. Then, if required, the spouses attend a court hearing in which a judge approves their settlement.
Collaborative Divorce Benefits
Collaborative divorce has many advantages over traditional divorce litigation. In divorce litigation, the adversarial court process often pits one spouse against the other in a system generally designed to create a winner and a loser. Collaborative divorce centers on problem-solving and building agreement, instead of blaming, to create a win-win situation for the spouses.
Also, in traditional divorce proceedings, each spouse may have to hire their own financial professional and other expert witnesses to aid their case. In collaborative divorce, however, one neutral financial advisor can help the couple make monetary arrangements for the future. Further, gathering information through the formal discovery process takes longer and may result in higher fees for the lawyers' work in procuring depositions, affidavits and other documents. These steps can be avoided in collaborative divorce.
Most important, though, couples who choose collaborative divorce instead of litigation are more satisfied with the results, reports Stuart Webb, a lawyer who developed collaborative law in the early 1990s. This is because the collaborative process can be less expensive than going to court, and it also protects children from potentially-hostile court proceedings.
In addition, couples retain control over the process and outcome in collaborative divorce. Because people are most willing to follow their own rules, the spouses are more likely to comply and be satisfied with the settlement. Instead of court-imposed timelines and results, collaborative divorce provides flexibility to craft unique solutions and move according to the spouses' schedules. Also, no settlement is final until each spouse agrees to it.
Collaborative Divorce and Mediation
Although they both avoid litigation and rely on the voluntary, honest exchange of information, collaborative divorce and mediation are different processes.
In mediation, a neutral third party called a mediator helps spouses negotiate a settlement. But, the mediator can neither advocate for a spouse nor give any legal advice. Lawyers can assist spouses in the mediation process, but they are not bound to avoid litigation. Therefore, there is a risk of ultimatums or threats of litigation that may stop negotiation.
Who are Candidates for Collaborative Divorce
Collaborative divorce is a wonderful tool, but it is not appropriate for all couples. The collaborative process may not be appropriate in cases involving domestic violence or severe mental illness. But, there are other options for divorcing spouses in these situations.
If you have questions about collaborative divorce, mediation or traditional divorce litigation, contact a knowledgeable divorce attorney in your area. A lawyer trained in collaborative divorce can help you determine which process is right for you.
