Collaborative Divorce Law FAQs

What is Collaborative Law?

Collaborative Law is the newest divorce dispute-resolution process. The key difference between collaborative law and conventional divorce is the clients’ pledge to reach an agreement without going to court. It is a client-centered and client-controlled process that focuses on “interest based negotiation” rather than the traditional positional bargaining process. The goal of collaboration is to develop respectful relationships, solve problems together, and prevent a battle in court. In order to accomplish this, the parties agree in writing that they will not go to court. This agreement is what makes the process work. No one may go to court or even threaten to do so. If that occurs, the process terminates and both collaborative lawyers are disqualified from further involvement in the case.

Hallmarks of the practice are:

1. the focus is on settlement and the future
2. court is not an option
3. it’s a “transparent” process – there is full and complete disclosure by the clients and the attorneys give their advice and experience in the presence of everyone during the meetings

Collaborative Process at a Glance

• Agreement not to go to court
• Promotes mutual respect
• Emphasizes the needs of the children
• Clients control the process and make final decisions
• Process and discussions are kept private
• Communication is open and constructive
• Focuses on needs and interests of clients and the family
• Utilizes a problem solving approach
• Prepares individuals for new lives

What is the Collaborative Divorce Team?

This is an emerging field of collaborative law which provides a collaborative divorce team consisting of two lawyers, two divorce coaches, a child specialist and a financial specialist to help the couple. Believe it or not, this team of six can be more cost effective than the conventional method of divorce.

Keep in mind that divorce affects couples on multiple levels. Divorce is a complex event involving legal, emotional, and financial considerations. When children are involved, there are the additional needs of developing appropriate parenting plans and learning communication skills so the couple can effectively co-parent their children.

In the traditional way of divorcing, lawyers have handled all of these tasks. But since lawyers are not therapists, or accountants, or child specialists, what happens is the divorce becomes final, but many issues remain unresolved. Because these issues are not resolved at the time of the legal divorce, they often continue to be litigated and re-litigated for years.

To remedy this, the Collaborative Divorce Team model uses a collaborative team to help the couple on all levels toward one goal: to maximize the benefit to the family.

Who are the Collaborative Team members and what are their roles?

• Collaborative Attorney—has specialized training in the collaborative process and interest-based negotiation, serves to educate their client through the process, advocates for their client, provides legal advice, and helps the client to generate and evaluate options for resolution.
• Divorce Coach—a licensed mental health professional with specialized training in collaborative practice who helps the clients and the collaborative professionals to communicate effectively within the process. This person does not act as a therapist in the process but rather helps to manage emotional and psychological issues so the process can move along smoothly.
• Child Specialist—a licensed mental health professional with specific training in family systems and child development. This person helps the parents and the professionals involved to stay focused on the needs and feelings of any children involved, and to develop an effective co-parenting plan.
• Financial Counselor—a neutral financial specialist who helps clients to gather, organize, value and understand their financial information and to clarify their financial interests and goals. This person is a certified financial planner, chartered financial consultant, certified divorce planner or certified public accountant, with additional training in divorce and family law issues.

Why is the Collaborative Divorce process better than other methods to resolve a divorce?

The collaborative process is designed to empower the clients to come up with their own marital separation agreement that is specific to their needs and concerns. The result they achieve in this process is more creative than anything they would achieve in the adversarial process, and it addresses and meets the needs of both parties. In this process, the clients and the lawyers take a reasonable approach to all issues. Where there is not agreement, all parties use their best efforts to brainstorm options and proposals which would meet the fundamental needs as expressed by each party. Ultimately, there is compromise on both sides and an acceptable solution is found.

How is Collaborative Law different from Mediation?

In mediation, there is one neutral professional who meets with the parties to help reach resolution. The mediator may not give either party legal advice and cannot help either side advocate their position. This can be difficult when there is an imbalance of power between the parties. If one side or the other becomes stubborn, unreasonable, or emotionally upset, the process can become unbalanced. If the mediator tries to assist one party or the other when this happens, he or she may be seen as aligning with that party, whether it’s true or not. This can result in either a breakdown in the process or an unbalanced and unfair agreement. Collaborative law was devised to address these problems. Like mediation, settlement is still the only agenda of the process; however, with collaboration, each party has a legal advocate and advisor at all times during the process. This levels the playing field and provides opportunity for a balanced and acceptable settlement to both parties.

How is Collaborative Divorce different from Divorce Litigation?

In collaborative divorce, you and your spouse control the process and make final decisions. In divorce litigation, the judge controls the process and makes the final decisions.

In collaboration, you and your spouse pledge to be respectful and open on all the issues. Litigation is based on an adversarial process and parties tend to try to “hide the ball” in order to gain an advantage.

In collaboration, the costs are manageable and usually less expensive than litigation. In litigation, the costs are unpredictable and can escalate very quickly. The fees you pay to your collaborative lawyer are primarily for time spent with your lawyer in the collaborative meetings. The fees you pay to your litigation lawyer are often for hours of time spent by your lawyer reviewing financial documents and preparing for trial.

In collaboration, you and your spouse determine the timetable. The average case can be completed in three to eight months. In litigation, how long your case takes depends on the court system. Because there are usually multiple hearings in litigated cases, they can take one to three years to complete.

In collaboration, your lawyer works with you to achieve a mutually acceptable settlement. In litigation, the lawyers fight to win, which means that someone loses. The truth is there are no winners in litigation. The cost of litigation in terms of time, money, and stress is astronomical to both parties, regardless of who “wins.”

What happens if one side or the other plays “hide the ball” or is dishonest
in some way?

This can happen. There are never any guarantees with collaboration that both parties will act with integrity. There are also no guarantees of this in conventional legal representation. The difference with collaborative law is that a lawyer in this process is required to withdraw upon becoming aware that his or her client has not disclosed necessary information, has been dishonest in any way, or is not participating in the process in good faith. This is usually an effective deterrent for most clients to stay true to the process.

Unfortunately, we all know there are dishonest people who will do everything they can to hide assets or conceal money. You’re the best judge of your spouse’s honesty. If you have confidence in your spouse’s basic honesty, then the collaborative process is a good choice for you. If you know your spouse would lie on an income tax return or other financial documents, the collaborative process may not be the best choice for you, since that basic honesty would be lacking. You must make the choice that is best for you.

Is Collaborative Divorce the best choice for me?

It’s not for everyone, but Collaborative Divorce is worth considering if some or all of these are true for you:

1. You want a civilized, respectful resolution of your issues.
2. You would like to keep open the possibility of friendship with your partner after the divorce.
3. You and your spouse will be co-parenting children and you want the best co-parenting relationship possible.
4. You want to protect your children from the harm associated with litigated dispute resolution between parents.
5. You and your spouse have friends and extended family in common that you both want to remain connected to.
6. You have ethical and spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
7. You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.
8. You value control and autonomous decision making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).
9. You recognize the restricted range of outcomes generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
10. You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.
11. You understand that conflict resolution with integrity involves not only achieving your own goals but finding a way to achieve the reasonable goals of the other person.
12. You and your spouse will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge – fixing the problem rather than fixing blame.

2001 American Bar Association

How can I find a collaborative lawyer?

Check out the yellow pages where you live or contact your local bar association for listings of collaborative lawyers. Go to the website for the International Academy of Collaborative Professionals to find a listing of collaborative lawyers near you. Make an effort to find the best collaborative practitioner you can. Ask them how many collaborative cases they have handled and how many terminated without agreements. Ask what training they have had in the collaborative process, alternate dispute resolution, and conflict management.

Is the collaborative divorce process expensive?

Collaborative lawyers generally charge by the hour, as do conventional family lawyers, and rates vary according to experience. Since every case is different, there is no way to predict cost. It will depend on how simple or complex your issues are, how much time is spent in reaching agreement on each issue, whether you and your spouse have already reached many of the agreements, the emotional stages of each of the parties, etc. A rule of thumb is that a collaborative case will cost you 50 % to 60% of a fully litigated case. It’s fair to say that collaboration is the most efficient and economical conflict resolution process for the broadest range of clients, and that litigation is, quite simply, the most expensive way of resolving a dispute.